Citation Nr: 1037964 Decision Date: 10/07/10 Archive Date: 10/15/10 DOCKET NO. 09-11 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION Appellant (the Veteran) had active service from August 1955 to August 1959. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Radiation Claims Processing Team located at the Regional Office (RO) in Jackson, Mississippi. Jurisdiction over the claims file was subsequently returned to the RO in Fort Harrison, Montana. The Veteran presented testimony at a Board hearing chaired by the undersigned Veterans Law Judge, sitting at the RO, in June 2010. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. Prostate cancer did not result from radiation exposure in service. 2. The Veteran was not exposed to Agent Orange during service, and he did not have service in Vietnam. 3. Prostate cancer was not manifest in service, or after service until 2006; and the current disability is not related to service. CONCLUSION OF LAW Prostate cancer was not incurred in or aggravated by service, and such incurrence or aggravation is not presumed. 38 U.S.C.A. §§ 337, 1101, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (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, 5126 (West 2002 & Supp. 2009)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a July 2007 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate his claim. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The appellant has substantiated his status as a Veteran. He was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements of his claim, in the July 2007 letter. VA regulations and recent caselaw require that a hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2009). The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, there was no testimony regarding additional existing evidence that was not of record. Moreover, the Veteran provided testimony regarding the precise reason for the RO's denial of his claim, the lack of evidence establishing actual exposure to radiation. Significantly, the Court has held that notice errors may be cured by demonstration by the Veteran or his representative that he has actual knowledge of the evidence needed to substantiate a claim. Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim. Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). Given the Veteran's specific testimony regarding his location in service, and his proximity to nuclear test sites, the Board finds that the Veteran has demonstrated actual knowledge of the information and evidence needed to substantiate a claim for service connection. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records service personnel records, and all of the identified post-service treatment records. In addition, the Veteran's assertions regarding radiation exposure were investigated according to the provisions of 38 C.F.R. § 3.311. The RO certified that no dosimetry information was available for the Veteran. Regarding service connection on a direct basis, the Veteran has not been provided with a VA examination as to the etiology of his prostate cancer. Under the VCAA, VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006). Here, no examination was required because there is no injury or disease in service that may be related to prostate cancer, and no continuity of symptomatology after service. Moreover, the Veteran's assertions regarding exposure to Agent Orange while stationed on Guam are not substantiated, and are essentially speculative, based on reported accounts of other service personnel at times other than when the Veteran served. The Board has determined the report of exposure to Agent Orange is not credible. Accordingly, an opinion as to etiology, based either on exposure to Agent Orange, or on direct service connection is not necessary. II. Analysis Veterans are entitled to compensation from the Department of Veterans Affairs if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so- called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). On his June 2007 claim form, the Veteran reported that he was in the U.S. Air Force, stationed at Mountain Home A.F. Base in Idaho at the time the government was "testing [b]ombs" in Elko Nevada. He stated that he believes he was exposed to radiation at that time. He also reported that, in October of 2006, he was diagnosed with Prostate cancer. In a July 2007 statement, he reported that he had been issued a device to measure the amount of radiation he was exposed to, but that he had never been told how much that was. In a September 2008 VA Form 21-4138, the Veteran reported that he was also in Ogden, Utah in 1956 or 1957, and was stationed on Guam in October, November, and December 1957, and January, and part of February 1958, and that nuclear testing was being conducted on Guam as well. The Veteran also testified at his hearing as to being present at Mountain Home A.F.B. and on Guam. Service personnel records reveal that the Veteran entered active service in August 1955, and served as an airframe repairman until June 1958; he then served as a fabric, leather, and rubber, helper until July 1959. He was hospitalized for ear problems in July 1959 and discharged in August 1959. The Veteran's record of military assignments shows that he was stationed at Mountain Home Air Force Base in Idaho throughout his service, with the exception of a period from October 20, 1957 to January 13, 1958, during which he was stationed at "A.P.O. 334," which refers to Guam, or Anderson Air Force Base on Guam. Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff. at 120 F.3d. 1239 (Fed. Cir. 1997). First, there are certain types of cancer which will be presumptively service connected for radiation-exposed veterans: (i) Leukemia (other than chronic lymphocytic leukemia). (ii) Cancer of the thyroid. (iii) Cancer of the breast. (iv) Cancer of the pharynx. (v) Cancer of the esophagus. (vi) Cancer of the stomach. (vii) Cancer of the small intestine. (viii) Cancer of the pancreas. (ix) Multiple myeloma. (x) Lymphomas (except Hodgkin's disease). (xi) Cancer of the bile ducts. (xii) Cancer of the gall bladder. (xiii) Primary liver cancer (except if cirrhosis or hepatitis B is indicated). (xiv) Cancer of the salivary gland. (xv) Cancer of the urinary tract. (xvi) Bronchiolo- alveolar carcinoma. (xvii) Cancer of the bone. (xviii) Cancer of the brain. (xix) Cancer of the colon. (xx) Cancer of the lung. (xxi) Cancer of the ovary. See 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, 38 C.F.R. § 3.311(b) includes a list of "radiogenic diseases" which will be service connected provided that certain conditions specified in that regulation are met. For purposes of this section the term "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. (Authority: 38 U.S.C. 501). If a veteran has one of the radiogenic diseases, a radiation dose assessment will be obtained and the case will be referred to the Under Secretary for Benefits for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that such veteran's disease resulted from radiation exposure during service. When a claim is forwarded for review the Under Secretary for Benefits may request an advisory medical opinion from the Under Secretary for Health. If the Under Secretary for Benefits determines there is no reasonable possibility that the Veteran's disease resulted from radiation exposure in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311. Third, direct service connection can be established by "show[ing] that the disease or malady was incurred during or aggravated by service, a task which includes the difficult burden of tracing causation to a condition or event during service." See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Regarding the first method, prostate cancer is not listed among the disabilities presumptively service connected for radiation- exposed veterans. Accordingly, that method is unavailing. Turning to the second method, prostate cancer is listed among the radiogenic diseases under 38 C.F.R. § 3.311. Accordingly, the Board will explore whether the provisions of that section were applied. The RO obtained a radiation exposure history (Form NSO-185) from the National Nuclear Security Administration in June 2008. That record simply states that there are no film badge or dosimetry records for the Veteran. However, a letter attached to the form indicates that this does not necessarily indicate lack of participation. A request was also made to the Defense Threat Reduction Agency, which responded in June 2008 that it only maintained data regarding actual participation in U.S. atmospheric nuclear testing or the occupation of Hiroshima and Nagasaki. The RO denied the claim in October 2008, finding that there was no evidence of the Veteran having been exposed to radiation in service. In his notice of disagreement, the Veteran reiterated his claims as to being present in Idaho and Guam, and having been issued a dosimeter in both places. He stated that he is now diagnosed with prostate cancer, and "it had to come from somewhere." In a November 2008 letter, the Air Force Chief, A.F. Radioisotope Committee Secretariat, informed the RO that a query of the occupational radiation exposure monitoring records in the A.F. Master Radiation Registry produced no exposure data for the Veteran. In September 2009, the RO made a request for an advisory opinion and/or dose estimate from the Undersecretary of Health. In a January 2010 letter, V.A.C., M.D. reviewed the pertinent evidence, including the Veteran's job assignments and locations of service. Dr. V.A.C. noted that the Veteran performed no duties at the Nevada Test Site (NTS) or Pacific Proving Ground (PPG), where all atmospheric nuclear weapon testing by the U.S. was performed. She acknowledged that the Veteran's records show that his unit could have been stationed in Guam from October 1957 to January 1958, however there was no atmospheric testing at the PPG during this period. She also acknowledged that Operation TEAPOT (1955), Operation PLUMBROB (1957), and Operation HARDTACK 11(1958) were conducted at the NTS while the Veteran was at Mountain Home AFB. Dr. V.A.C. concluded that, as there are no dosimetry data for the Veteran, dose reconstruction is virtually impossible. However, a report on fallout from nuclear weapons tests and cancer risks indicated that the total external and internal dose from cesium-l37 to the red bone marrow of persons born on 1 Jan 1951 from all NTS tests showed that persons in Elmore County (the location of Mountain Home A.F.B) would receive 30 milligray (3 rad) or less. This estimate is for a period much longer than the Veteran's four years. Dr. V.A.C. used the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's prostate cancer. The program calculated a 99th percentile value for the probability of causation of 12.69 percent. In view of this, it was her opinion that it is unlikely that the Veteran's adenocarcinoma of the prostate can be attributed to radiation exposure while in military service. Based on the above evidence, the VA Director of Compensation and Pension Service concluded in a January 2010 review that there is no reasonable possibility the Veteran's prostate cancer is the result of his occupational exposure to ionizing radiation during military service. It would appear that the proper procedure was followed by the RO in developing the Veteran's claim. There is no dispute as to facts surrounding the Veteran's service. His service records confirm his presence at Mountain Home, Idaho, and in Guam. While they do not confirm his reportedly brief presence in Ogden Utah, this can be conceded. It can also be conceded that the Veteran was issued a dosimetry badge at various times during his service. He testified to this fact at the hearing, and the Board finds his testimony to be credible on this point. The essential question to be resolved in this case is whether exposure to ionizing radiation is the cause of his prostate cancer. The Veteran does not contend that he was an actual participant in nuclear testing; but rather contends that he was in Idaho and Utah while testing was being conducted in Nevada, and that he was present on Guam at some time after testing had been conducted there. However, the Veteran has specifically stated that he does not know how much radiation he was exposed to, or what the dosimetry badges read. In essence, his statements regarding the amount of radiation he was exposed to are speculative. This is underscored by his statement that his prostate cancer "had to come from somewhere." In contrast, the opinion of Dr. V.A.C., is based on the Veteran's vicinity to nuclear test sites at the time ionizing radiation was being released. As noted by Dr. V.A.C., and as conceded by the Veteran, he was not present on Guam at the time of nuclear testing at the PPG, but was stationed there several years after. As concluded by Dr. V.A.C., this would not have resulted in significant exposure. Also, as noted by Dr. V.A.C., all atmospheric testing in Nevada was conducted at the NTS. The Board takes notice of the fact that the NTS is not located in Elko Nevada, but is located on the grounds of Nellis Air Force Range (NAFR) in Southern Nevada, near Las Vegas. Dr. V.A.C. found, based on the Veteran's location, as reported by him, that the probability of causation was only 12.69 percent. The Veteran also submitted several Internet articles regarding testing performed at the NTS and PPG; however, none of these articles provides any of detail regarding the Veteran's exposure to radiation. Significantly, appendix C from a book entitled Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program, from the National Research Council of the National Academies, notes in its summary that a report published in 1975 concluded that "the estimated annual effective dose from residual fallout on Guam due to nuclear-weapons tests was only a small fraction of the dose that residents receive from natural sources of radiation, which is less than in many other locations around the world." The Board reiterates that it finds the Veteran's account of his service, as he remembers it, to be credible. However, he has offered no opinion as to his actual exposure to radiation, but stated that he does not know; and his opinion regarding causation is speculative, and based on apparently inaccurate information regarding his proximity to the Nevada Test Site. The Board finds the more conclusive, more factually grounded, and better reasoned opinion of Dr. V.A.C. to be more persuasive than that of the Veteran, and accordingly concludes that the Veteran's prostate cancer, was not the result of in-service radiation exposure. Before turning to the third method of establishing service connection - direct incurrence - the Board notes the Veteran has posited that his prostate cancer may have been caused by exposure to Agent Orange. In a November 2008 written letter, the Veteran referred to articles he had read on the Internet showing that Agent Orange was used on Guam in the late 1960's (after he was stationed there). He also stated, that "I feel that the fact has been established that there was [A]gent [O]range was present in Guam in the 1950[']s and 1960[']s." The Board notes that, while prostate cancer is listed among the Agent Orange presumptive diseases (see 38 C.F.R. § 3.309(e)), the Veteran did not have the requisite service to qualify for this presumption. He did not serve in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See 38 C.F.R. § 3.307(a)(6). There is no presumption regarding service on Guam during any time period. Indeed, the Veteran has not reported actual or first-hand knowledge of exposure to Agent Orange while stationed on Guam. He has not stated that he applied Agent Orange, handled containers of Agent Orange, was personally sprayed with Agent Orange, or otherwise came into direct contact with Agent Orange. His entire argument regarding exposure to Agent Orange comes from reference to recent articles and prior decisions of the Board regarding Veterans who contended that they came into contact with Agent Orange on Guam in the late 1960's during the Vietnam War. The Veteran's service on Guam was from October 20, 1957 to January 13, 1958. Moreover, to the extent that the Veteran seeks to establish that he was exposed to Agent Orange based on prior decisions of the Board, such argument must fail as Board decisions have no precedential value. See Hillyard v. Derwinski, 1 Vet. App. 349, 351 (1991); 38 C.F.R. § 20.1303 (2009). The Veteran's assertions regarding exposure to Agent Orange are speculative, and based entirely on reference to the experiences of other individuals whose pertinent service details differ from his. Indeed, his statements make it clear that he is not actually aware of having been exposed to Agent Orange, and he has offered no conclusive evidence to underscore his belief in such exposure. Accordingly, the Board concludes that his account of exposure to Agent Orange on Guam is not credible. Service treatment records reveal no treatment or complaint regarding prostate cancer, and the service separation examination contains pertinently normal findings, including for the genitals and urinary system. By the Veteran's own statement, the first diagnosis of prostate cancer was in 2006, more than 40 years after separation. The post-service evidence does establish or even suggest continuity of symptomatology. Moreover, there is no medical opinion that purports to relate the Veteran's prostate cancer to service. While the Veteran is competent to describe his symptoms, and may, in some instances, provide a competent nexus opinion, establishing the etiology of prostate cancer is not a matter capable of lay observation. The Veteran's belief that his prostate cancer was caused by service is unpersuasive given the absence of any disease or injury in service that may be related to prostate cancer, and the extended period after service before the disease became manifest. In light of these facts, the Board must conclude that service connection for prostate cancer is not in order. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for prostate cancer is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs