Citation Nr: 0811294 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 02-07 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The veteran served on active duty from September 1944 to October 1945, from January to April 1946, from January 1947 to October 1948, and from January 1951 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the veteran's claim. In January 2003, the Board remanded the case to the RO, via the Appeals Management Center (AMC), in Washington, DC, for additional development. The RO completed the additional development as directed, continued to deny the claim, and returned the case to the Board for further appellate review. FINDINGS OF FACT 1. Prostate cancer was not demonstrated in service nor was it the result of injury suffered or disease contracted in service. 2. Prostate cancer is not a presumptive disorder under 38 C.F.R. § 3.309(d) based on in-service ionizing radiation exposure, and the preponderance of the competent evidence is against finding that prostate cancer is otherwise related to service. CONCLUSION OF LAW Post-operative residuals of prostate cancer were not incurred in or aggravated by active service, nor may they be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1133, 5103, 5103A, 5107(b) (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a), (d), 3.311 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in May and November 2001, the latter being specifically tailored for radiation exposure claims, of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA has fulfilled its duty to assist the veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations, and also informed him of the need to submit all pertinent evidence in his possession. While the veteran may not have received full notice prior to the initial decision, after notice was provided, he was afforded a meaningful opportunity to participate in the adjudication of the claim, and the claim was readjudicated, as shown in the October 2007 Supplemental Statement of the Case. The veteran was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. The RO's failure to provide the veteran notice of how disability ratings and effective dates are determined is not prejudicial in light of the decision reached below. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Governing Law and Regulation Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Further, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cancer becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Analysis The veteran was diagnosed with prostate cancer in 1997 or 1998. His treatment has included a transurethral resection of the prostate. Service medical records are negative for any complaints, findings, or treatment for prostate symptomatology. The veteran did not indicate any prior history of prostate complaints on his December 1966 Report Of Medical History For his examination at retirement, and the December 1966 Report Of Medical Examination For Retirement notes his digital rectal examination was normal, as was his genitourinary urinary system. He was deemed physically fit for retirement. As already noted, he was not diagnosed with prostate cancer until 1997 or 1998, at least 30 years after his retirement from active service. There is no evidence or assertion that he was treated for prostate cancer within one year of his retirement from active service. None of the private or VA treatment records in the claims file note any comment or opinion to the effect that the veteran's prostate cancer is causally related to his active service. Thus, there is no factual basis to support service connection on a direct basis, or on a presumptive basis for a chronic disease. 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Claimed Radiation Exposure The primary basis on which the veteran asserts his entitlement to service connection is that he was exposed to ionizing radiation while he was assigned to the 8th Army Field Hospital, Ft. Lewis, Washington, as a vehicle mechanic. He makes no assertion that he was actually physically present at atomic or nuclear tests. Instead, in his January 1998 statement, he asserts that elements of the 8th Army Field Hospital participated in at least three atomic test blasts in Nevada in 1958, and he was detailed to clean and repair equipment used in the tests upon their return to Ft. Lewis. He also asserts that, while he did not wear a film badge, he was required to wear a dosimeter. Governing Law and Regulation In addition to the legal requirements for service connection set forth above, service connection can also be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Finally, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. Combee v. Brown, 34 F.3d 1039, 1043- 44 (Fed. Cir. 1994). Analysis While prostate cancer is not one of the diseases for which service connection is presumed where there is evidence of in- service exposure to ionizing radiation, it is a radiogenic disease, and it manifested more than five years after the veteran's active service. See 38 C.F.R. § 3.311(b)(2). Thus, the veteran was entitled to, and in fact received, the developmental assistance associated with a radiogenic disease, and the Board remanded the case to complete that process. See id. As discussed below, however, the preponderance of the evidence, is against his claim. Service personnel records note the veteran was assigned to Ft. Lewis from September 1957 to August 1959. The only evidence of record that elements of the 8th Army Field Hospital were involved in atomic tests in Nevada is the veteran's assertions. The claims file contains no documentary confirmation. The veteran is, of course, competent to provide that type evidence, 38 C.F.R. § 3.159(a)(2), so it must be considered. Service medical records are negative for any indication that the veteran's duties exposed him to any environmental hazards, as there are no entries to the effect that he was periodically monitored for any particular purpose. In February 2003, pursuant to the Board's remand, the RO provided the veteran's assertions, including that he wore a dosimeter, and his military duties to the U.S. Army Aviation and Missile Command, Redstone Arsenal, Alabama. That command's response, also dated in February 2003, advised the RO that a search of the command's records for exposure to ionizing radiation disclosed no information associated with the veteran. The U.S. Army Center For Health Promotion and Preventive Medicine advised the RO of its process in a June 2003 letter. The mission of the center is to research radiation exposure for Army veterans. The center said it would contact national archives for retrieval of personnel and unit records, and it would also attempt to retrieve any dosimetry or bioassay records to determine if there was radiation exposure. If it is determined there was radiation exposure, and upperbound dose estimate would be attempted. A November 2005 VA Report of Contact (VA Form 119) notes the center advised that the inquiry fell under the purview of the Defense Threat Reduction Agency. The RO provided the veteran's information to the Threat Reduction Agency in July 2007. In its September 2007 letter, the Threat Reduction Agency noted the U.S. Government conducted Operation PLUMBBOB from May 28 to October 31, 1957, and Operation HARDTACK II from September 19 to October 21, 1958, at the Nevada Test Site. No atmospheric tests were conducted in 1959 or 1960. The veteran was based in Korea from October 1, 1956, to December 10, 1957, which precluded his participation in Operation PLUMBBOB, and Morning Reports note he remained with his unit at Ft. Lewis during Operation HARDTACK. Thus, the agency's letter noted, there was no indication the veteran participated in any atmospheric nuclear tests during the period in question. Further, a careful search of available dosimetry data disclosed no record of radiation exposure for the veteran. Initially, the Board notes that the agency's phraseology in its letter neither confirms nor refutes whether personnel or equipment of the 8th Army Field Hospital was in fact used in the operation. The phrase, "remained with his unit in Ft. Lewis" might be read to infer that elements of the 8th were in fact in Nevada, but it is not definitive. Nonetheless, according to the Threat Reduction Agency, there is nothing in the record to suggest that data associated with the veteran would not have been captured if he in fact wore a dosimeter as he asserts; or, there was no pertinent radiation data to record even if he did. Further, the veteran's assertions implicitly assume that any 8th Army Field Hospital equipment used in Operation HARDTACK underwent no decontamination procedures whatsoever prior to returning it to Ft. Lewis. Thus, the Board is constrained to deny the claim on both a direct and presumptive basis. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the veteran's claim, however, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs