Citation Nr: 1123777	
Decision Date: 06/22/11    Archive Date: 06/28/11

DOCKET NO.  05-14 977	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1.  Entitlement to service connection for a prostate disability, to include as secondary to ionizing radiation.

2.  Whether the reduction in the disability rating for residuals of bladder cancer from 100 percent to 20 percent was proper.

3.  Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1942 to December 1945.

These matters come before the Board of Veterans' Appeals (Board) from August 2004, August 2007, and May 2010 rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Providence, Rhode Island.  In the August 2004 decision, the RO denied entitlement to service connection for prostate cancer.

In the August 2007 decision, the RO reduced the disability rating for residuals of bladder cancer from 100 percent to 0 percent, effective November 1, 2007.  

In the May 2010 decision, the RO denied entitlement to a TDIU.

In September 2005, the Board remanded the claim for service connection for a prostate disability in order to schedule the Veteran for a Board hearing before a Veterans Law Judge.

The Veteran testified before the undersigned at a November 2006 videoconference hearing at the RO.  A transcript of the hearing has been associated with his claims folder.

In March 2007, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).

In March 2007, the Board denied the claim for service connection for a prostate disability.  The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court).

In a May 2007 rating decision, the RO proposed to reduce the disability rating for residuals of bladder cancer from 100 percent to 0 percent.  In the August 2007 rating decision, the RO reduced the disability rating from 100 percent to 0 percent, effective November 1, 2007.  

In February 2009, the Court vacated the Board's March 2007 decision which denied the claim for service connection for a prostate disability and remanded the case for readjudication in compliance with directives specified in a January 2009 Joint Motion filed by counsel for the Veteran and VA.

In June 2009, the Board remanded the claim for service connection for a prostate disability in compliance with the Joint Motion.  The Board also remanded the rating reduction issue in order to schedule the Veteran for a videoconference hearing before a Veterans Law Judge at the RO in accordance with the Veteran's request for a hearing in his October 2008 substantive appeal (VA Form 9).

In April 2011, the Veteran withdrew his request for a Board hearing by videoconference as to the rating reduction issue.

The record reflects that the Veteran was previously represented by Kurt Hamrock, Esq., as indicated by a completed VA Form 21-22 dated in May 2009.  In June 2010, prior to re-certification of the appeal to the Board, the Veteran completed a VA Form 21-22 dated in June 2010, which appointed Disabled American Veterans as his representative.  The RO notified his former representative of the change in a letter dated in April 2011.  Thus, the Veteran is now represented by Disabled American Veterans as to all issues currently on appeal.

In its June 2009 remand, the Board instructed the Agency of Original Jurisdiction (AOJ) to obtain opinions from the Under Secretary for Benefits and the Under Secretary for Health concerning the relationship between the Veteran's prostate disability and in-service radiation exposure and whether prostate cancer is considered a urinary tract cancer.  All pertinent evidence, including the most recent version of the National Research Committee's (NRC) publication BIER (e.g. BIER VII) was to be considered in formulating the requested opinions.  All requested opinions were obtained in October 2010 and they included a discussion of BIER VII.  Thus, the AOJ substantially complied with the Board's June 2009 remand instructions. 


FINDINGS OF FACT

1.  The Veteran's prostate disability is not related to in-service radiation exposure or otherwise related to a disease or injury in service.

2.  At the time the 100 percent rating for bladder cancer was reduced, the evidence showed localized recurrence.

3.  A TDIU is a lesser benefit than a 100 percent rating for residuals of bladder cancer, and the claim for a TDIU arose after the appeal of the reduction in the disability rating for residuals of bladder cancer from 100 percent.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for a prostate disability are not met.  38 U.S.C.A. §§ 1110, 1112(a), (c), 1113 (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 20.1303 (2010).

2.  The reduction of the disability rating for residuals of bladder cancer from 100 percent to 20 percent was improper.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.105(e), 3.344(c), 4.1, 4.2, 4.7, 4.10, 4.115b, DC 7528 (2010).

3.  The restoration of a 100 percent rating for residuals of bladder cancer renders moot the appeal for entitlement to a TDIU.  38 U.S.C.A. § 1155; 38 C.F.R. 
§§ 3.340, 3.341, 4.16 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS


VCAA and Duty to Assist

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  

In light of the Board's favorable decision in restoring the 100 percent rating for residuals of bladder cancer, the claim is substantiated, and there are no further VCAA duties as to that issue.  Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

As for the claim for service connection for a prostate disability, 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); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The 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 pre-adjudication letter dated in December 2003, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection for a prostate disability.  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).

For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim.  73 Fed. Reg. 23,353 (Apr. 30, 2008).  

The Veteran 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 a March 2006 letter.  The timing deficiency with regard to this letter was cured by readjudication of the claim in a July 2006 supplemental statement of the case.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).
  
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).  

The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2010) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).  At the Veteran's November 2006 hearing, the undersigned identified the only issue on appeal at that time (i.e. entitlement to service connection for a prostate disability) and suggested that the Veteran submit evidence (including a medical opinion) showing a nexus between his diagnosed prostate cancer and service.  The duties imposed by Bryant were thereby met.

VA obtained the Veteran's service treatment records, pertinent service personnel records, and all of the identified post-service VA treatment records and private medical records.  In addition, VA obtained medical opinions through the VA Under Secretary for Benefits (Under Secretary) in accordance with the provisions of 38 C.F.R. § 3.311.

In May 2009 and December 2010 letters, the Veteran's representative argued that the physicians who provided July 2004 and October 2010 opinions on behalf of the VA Undersecretary for Heath as to the etiology of the Veteran's prostate disability were inadequately qualified to opine as to matters concerning radiogenic diseases such as prostate cancer.  Furthermore, he argued that the most recent opinion from the Under Secretary for Health in October 2010 was inadequate because the Veteran's records were not sufficiently reviewed and that a positive nexus opinion submitted by Evangelos G. Geraniotis, M.D. in November 2006 was not addressed.

There is no requirement that VA establish the qualifications of VA physicians and medical experts providing medical opinions.  Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a physician's qualifications in every case as a precondition for the Board's reliance upon that physician's opinion.  Sickels v. Shinseki, No. 2010-7140, 2011 WL 1707207 at *3-4 (Fed. Cir. May 6, 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009).  The Veteran has presented no specific challenge to the qualifications of the physicians who provided the July 2004 and October 2010 opinions, other than to note that there was no showing of their expertise in the areas of prostate cancer and radiogenic diseases.  These physicians are charged by VA with responsibility for providing opinions in claims based on radiation exposure.  

Furthermore, the October 2010 opinion was based upon a review of all available records concerning the Veteran's exposure to ionizing radiation in service, the reported dose estimates, and all appropriate medical literature.  The October 2010 opinion from the Director of Compensation and Pension Service (C&P) explicitly acknowledged Dr. Geraniotis' November 2006 opinion.  Hence, the most recent opinions are adequate.  

Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for disabilities claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways.  Davis v. Brown, 10 Vet. App. 209, 211 (1997); Ruker v. Brown, 10 Vet. App. 67, 71 (1997).

First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d).

Second, service connection can 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 disability at issue is a radiogenic disease.

Third, 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.  See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).  Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability was otherwise the result of active service.  In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation.  See also 38 U.S.C.A. § 1113(b) (nothing in 38 U.S.C.A. § 1112 prevents the grant of service connection on a direct incurrence basis).

Under 38 C.F.R. § 3.309(d), cancer of the urinary tract; are presumptively service-connected for radiation-exposed veterans.  38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d).

The term "radiation-exposed veteran" means either a veteran who while serving on active duty, or an individual who while a member of a reserve component of the Armed Forces during a period of active duty for training or inactive duty training, participated in a radiation-risk activity.  38 C.F.R. § 3.309(d)(3)(i).

The term "radiation-risk activity" means, in pertinent part, the occupation of Nagasaki, Japan by United States forces during the period beginning on August 6, 1945 and ending on July 1, 1946.  38 C.F.R. § 3.309(d)(3)(ii)(B).

The term "occupation of Nagasaki, Japan by United States forces" means official military duties within 10 miles of the city limits of Nagasaki, Japan, which were required to perform or support military occupation functions such as occupation of territory, control of the population, stabilization of the government, demilitarization of the Japanese military, rehabilitation of the infrastructure or deactivation and conversion of war plants or materials.  38 C.F.R. § 3.309(d)(3)(vi).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Analysis

Medical records, including an April 2010 VA examination report, reveal that the Veteran has been diagnosed as having prostate cancer.  Thus, a current disability has been demonstrated.

The Veteran has contended on various occasions, including during the November 2006 hearing, that he was exposed to ionizing radiation in service while stationed in Nagasaki, Japan in the month following the dropping of the atomic bomb on that city in August 1945, and that his current prostate disability is related to that radiation exposure. 

The Veteran has stated that he served in Nagasaki, Japan for approximately 2 months following the detonation of a nuclear bomb in that city in August 1945.  His duties included, among other things, transporting food supplies from U.S. military ships into the city, performing guard duty, feeding troops, and removing weapons that may have been exposed to radiation at ground zero.  

Reports from the Defense Threat Reduction Agency (DTRA) dated in July 2004 and May 2010 confirm that the Veteran was present in the VA defined Nagasaki area from September 23, 1945 to October 26, 1945 while serving with Headquarters and Service Company, 8th Marine Regiment.  During that time, he was stationed 10 miles northeast of Nagasaki in Isahaya, Japan and reportedly made daily trips to Nagasaki to transport personnel and supplies to and from Isahaya. He was also exposed to radiation fallout from the Nagasaki detonation while stationed in Kumamoto, Japan in October 1945 and again returned to Nagaski in late October 1945 at which time he departed Japan aboard the USS Fayette.

The Veteran contends that his currently diagnosed prostate cancer constitutes "cancer of the urinary tract" and that since he participated in the occupation of Nagasaki, Japan during the period beginning on August 6, 1945 and ending on July 1, 1946 and is therefore a radiation-exposed Veteran, presumptive service connection is warranted for his prostate cancer under 38 C.F.R. § 3.309(d).  

As for whether prostate cancer is considered a cancer of the urinary tract, there is conflicting medical evidence.  The Board, therefore, must weigh the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other.  See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)).  The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim.  See Gabrielson v. Brown, 7 Vet. App. 36, 29-40 (1994).

In support of his contention that prostate cancer is a cancer of the urinary tract, the Veteran has submitted several medical articles, including one from the National Institutes of Health, which list the prostate as being part of the urinary tract.  

In an October 2010 memorandum, Victoria A. Cassano, M.D., M.P.H., Director of Radiation and Physical Exposures, provided an opinion on behalf of VA's Under Secretary for Health.  She opined that prostate cancer, in and of itself, was a disease of the male genitalia and not of the urinary tract.  She observed that the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) was used to estimate the likelihood that exposure to ionizing radiation was responsible for a particular disease or disability; and that under IREP all prostate cancers were evaluated using the entry of "all male genitalia (185-187)" and are not considered a cancer of the urinary tract.  

She further stated that in its early stages, prostate cancer was not a urinary tract cancer but was confined to the prostate gland itself.  However, if left untreated or after long term progression, prostate cancer might metastasize to various parts of the body.  Furthermore, BEIR VII did not include any discussion of prostate cancer being evaluated as a urinary tract cancer and "all solid cancers are not differentiated in the reporting."

The generic medical articles submitted by the Veteran explain how problems with the prostate (such as prostate cancer) might affect urinary function given its close proximity to such organs as the bladder.  Although one article includes the prostate as part of the urological system, "urology" is defined as the medical specialty concerned with the urinary tract in both males and females, and with the genital organs in the male.  Id. at 2039.

More importantly, however, the articles do not provide any explanation or reasoning as to why the prostate is part of the urinary tract.  Therefore, they are entitled to minimal probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

Dr. Cassano's October 2010 opinion, however, is accompanied by a specific rationale which is essentially that the studies relied upon in determining whether cancers are related to ionizing radiation had not classified prostate cancer as a cancer of the urinary tract.

In light of Dr. Cassano's October 2010 opinion, the Board concludes that the weight of the evidence supports a finding that the prostate is not part of the urinary tract.  Therefore, prostate cancer is not a cancer of the urinary tract.  

As prostate cancer is not a urinary tract cancer and is not otherwise listed under 38 C.F.R. § 3.309(d), the Veteran is not entitled to presumptive service connection under 38 C.F.R. § 3.309(d) on the basis of his in-service radiation exposure.

In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. §§ 3.307, 3.309 and it is contended that the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. 38 C.F.R. § 3.311(a).  

The term "radiogenic disease" means a disease that may be induced by ionizing radiation and includes the following: all forms of leukemia (except chronic lymphatic (lymphocytic) leukemia), thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer.  38 C.F.R. § 3.311(b)(2). 

When it is determined that a veteran was exposed to ionizing radiation as a result of the occupation of Nagasaki, Japan from September 1945 until July 1946, the veteran subsequently developed a radiogenic disease, and such disease first became manifest within the period specified before its adjudication, the claim will be referred to the Under Secretary for further consideration in accordance with paragraph (c) of this section.  38 C.F.R. § 3.311(b).  

If after review the Under Secretary is convinced that sound scientific and medical evidence supports the conclusion that it is at least as likely as not that the veteran's disease resulted from exposure to radiation in service, the Under Secretary shall so inform the RO of jurisdiction in writing.  The Under Secretary shall set forth the rationale for this conclusion, including an evaluation of the claim under the applicable factors specified in this section.  If the Under Secretary determines that there is no reasonable possibility that the veteran's disease resulted from radiation exposure in service, the Under Secretary shall so inform the RO office of jurisdiction in writing, setting forth the rationale for this conclusion.  38 C.F.R. § 3.311(c).  

Prostate cancer is one of the diseases listed as a radiogenic disease.  38 C.F.R. § 3.311(b)(2)(ii).  As a radiogenic disease was diagnosed after service and the Veteran contends that it was the result of exposure to ionizing radiation due to the occupation of Nagasaki in 1945, radiation dose data was requested from DTRA in accordance with 38 C.F.R. § 3.311(a)(2)(i).

Based on the evidence of the Veteran's occupation of Nagasaki, DTRA provided the following radiation dose estimates in July 2004: a total dose of 0.017 rem, an upper bound total dose of less than 1 rem, an internal committed dose to the prostate of 0.006 rem, and an upper bound committed dose to the prostate of 0.06 rem.

Following the Board's June 2009 remand, radiation dose data was again requested from DTRA.  In May 2010, DTRA provided the following radiation dose estimates: a total external gamma dose of 0.099 rem, an upper bound total external gamma dose of 0.297 rem, an internal committed alpha dose to the prostate of 0.005 rem, an upper bound committed alpha dose to the prostate of 0.049 rem, an internal committed beta plus gamma dose to the prostate of 0.004 rem, and an upper bound committed beta plus gamma dose to the prostate of 0.036 rem.

As to the etiology of the Veteran's current prostate disability, there are conflicting medical opinions.  In a July 2004 memorandum, Susan H. Mather, M.D., M.P.H., provided an opinion on behalf of VA's Under Secretary for Health.  She opined that it was unlikely that the Veteran's prostate cancer could be attributed to exposure to ionizing radiation in service.  She reasoned that the Committee on Interagency Radiation Research and Policy Coordination (CIRRPC) Science Panel Report Number 6 (1988) did not provide screening doses for prostate cancer.  Based on a review of various sources of medical literature (including BEIR V), the sensitivity of the prostate to radiation carcinogenesis appeared to be relatively low and was not clearly established.  The IREP of NIOSH was utilized to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's prostate cancer.  In accordance with the guidance on using the NIOSH IREP, the cancer model for all male genitalia was utilized and a 99 percentile value for the probability of causation of 1.11 percent was calculated.

In August 2004, the Director of C&P reviewed the evidence in its entirety and opined that there was no reasonable possibility that the Veteran's prostate cancer resulted from radiation exposure in service.  This opinion was based on the July 2004 dose estimate, Dr. Mather's July 2004 opinion and rationale, the fact that the Veteran was first exposed to ionizing radiation at the age of 20 and his prostate cancer was diagnosed approximately 48 years after his last exposure, and the medical history of the Veteran and his family.

In a November 2006 letter, Dr. Geraniotis, a urologist, opined that there was "the possibility" that the Veteran's prostate cancer "may have some relationship" to in service radiation exposure.  This opinion was based on the Veteran's reports of exposure to ionizing radiation in service and the fact that exposure to ionizing radiation has been associated with many malignancies in humans and has been associated with urologic malignancies, among many others.

In compliance with the Board's July 2009 remand instructions, and after the May 2010 dose estimate had been obtained from DTRA, the Veteran's case was again referred to the Under Secretary for Health for an opinion concerning the etiology of the Veteran's prostate cancer.  In the October 2010 memorandum, Dr. Cassano opined that it was unlikely that the prostate cancer could be attributed to the exposure to ionizing radiation in service.  She reasoned that the IREP of NIOSH calculated a 99th percentile value for the probability of causation of 0.43 percent.  Furthermore, a review of BEIR VII did not affect the fact that the Veteran's prostate cancer was not likely related to radiation exposure in service.  BEIR VII addressed the topic of health risks due to low level exposure and all solid cancers were not differentiated in the reporting.  Only leukemias were reported separately.

One of the bases of the Joint Motion was that Dr. Mather's July 2004 opinion was based only on the findings in BEIR V and did not consider BEIR VII.

In October 2010, the Director of C&P again reviewed the evidence in its entirety, including Dr. Geraniotis' November 2006 opinion, and opined that there was no reasonable possibility that the Veteran's prostate cancer resulted from radiation exposure in service.  This opinion was based on Dr. Cassano's October 2010 opinion and rationale, the fact that the Veteran was first diagnosed as having prostate cancer 48 years after his last exposure to ionizing radiation, and the absence of evidence of any post-service radiation exposure.

The July 2004, August 2004, and October 2010 opinions are accompanied by detailed rationales which are consistent with the evidence of record.  Thus, these opinions are entitled to substantial probative weight.  See Nieves-Rodriguez, 22 Vet. App. at 304. 

Dr. Geraniotis' November 2006 opinion that there was "the possibility" that the Veteran's prostate cancer "may have some relationship" to in service radiation exposure, on the other hand, is of minimal probative value because it is general and speculative in nature.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim).

The remaining question is whether service connection for the Veteran's prostate disability can be established on a direct basis. Combee, 34 F.3d at 1043-44; 38 U.S.C.A. § 1113(b).  However, the Veteran has not argued, and the evidence does not reflect, that his disability is otherwise related to service.

There is no evidence of any complaints of or treatment for cancer in the Veteran's service treatment records and, other than a left varicocele, his December 1945 separation examination was normal.  In addition, there have been no reports of and the evidence does not reflect a continuity of symptomatology and the evidence indicates that the Veteran's cancer did not manifest until many years after service.

The first clinical evidence of a prostate disability are a prostate ultrasonography report from Park Health Care Services and a surgical pathology report from Cape Cod Hospital, both dated in November 1990, which reveal that the Veteran was diagnosed as having benign prostatic hypertrophy (enlarged prostate).  There is no lay or medical evidence of earlier symptoms of a prostate disability.

The absence of any evidence for decades after service weighs the evidence against a finding that the Veteran's prostate disability was present in service or in the year or years immediately after service.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  

During the November 2006 hearing, the Veteran reported that in 1994 a doctor by whom he was being treated had stated that it was possible that ionizing radiation was a factor in the development of his cancer.  He alluded to the fact that he was being treated at Cape Cod Hospital at the time of the opinion.  

The Veteran is certainly competent to report a statement made by his treating physician.  However, aside from the fact that any such opinion appears to be speculative and therefore minimally probative, there is no evidence of any opinion of a private physician other than Dr. Geraniotis' November 2006 opinion in the Veteran's claims file.  Furthermore, all available treatment records from Cape Cod Hospital (dated as early as 1990) have been requested and obtained and there is no evidence of any such opinion.

The Veteran has also submitted several Board decisions addressing claims of service connection for prostate cancer due to exposure to ionizing radiation.  A basis of the Joint Motion was that the Board had not addressed the Board decisions identified by the Veteran which addressed claims for service connection for prostate cancer due to ionizing radiation.

Although some of these decisions granted service connection based on evidence of a relationship between a veteran's prostate cancer and radiation exposure, these decisions are not pertinent to the instant claim.  Prior Board decisions have no precedential value.  See 38 C.F.R. § 20.1303.  The Board decisions submitted by the Veteran contain different facts that were not identical to those in this case, and were based on non-speculative medical opinions that relied upon the unique facts in those cases.  Such opinions are not present in the instant case.  Thus, the Board decisions submitted by the Veteran are not probative.  See generally Sacks v. West, 11 Vet. App. 314 (1998). 

Overall, there is no other medical evidence of a relationship between the current prostate disability and an in-service disease or injury, including radiation exposure.  Thus, the preponderance of the evidence is against a finding that the Veteran's prostate disability is related to service. 

The Veteran has expressed his belief that his current prostate disability is related to in-service radiation exposure.  However, as a lay person, he lacks the expertise to say that the disability was caused by radiation exposure, as opposed to some other cause.  It would require medical expertise to evaluate the prostate disability, consider all the potential causes, and determine that one was a more likely cause than another.  Hence, the Veteran's opinion on this question is not competent evidence.  38 C.F.R. § 3.159(a)(1), (2) (2010).

Although the Veteran has received treatment by medical professionals for his cancer, none have adequately attributed this disability to in-service radiation exposure or any other disease or injury in service.  Rather, the only probative medical opinions of record reflect that no such relationship between the current prostate disability and radiation exposure exists.

For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim.  The benefit-of-the-doubt doctrine is therefore not applicable and the claim for service connection for a prostate disability must be denied.  See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57.

Rating Reduction

The Veteran's bladder cancer is rated under 38 C.F.R. § 4.115b, DC 7528 as malignant neoplasms of the genitourinary system.  Under DC 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of 6 months.  Any change in evaluation based upon that or any subsequent examination, shall be subject to the provisions of 38 C.F.R. § 3.105(e).  If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant.  38 C.F.R. § 4.115b, DC 7528.

Where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level.  Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.  38 C.F.R. § 3.105(e).

The circumstances under which a disability rating may be reduced are specifically limited and carefully circumscribed by regulations promulgated by VA.  See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280 (1992).

Where VA has reduced a veteran's rating without observing applicable laws and regulation, such a rating is void ab initio and the Court will set it aside as not in accordance with the law.  Kitchens v. Brown, 7 Vet. App. 320, 325 (1995).

Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored.  Schafrath v. Derwinski, supra at 595.

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.

The rating reduction for bladder cancer was proposed in a May 2007 rating decision and implemented in the August 2007 rating decision, effective November 1, 2007.  

In the May 2007 rating decision, the RO proposed to reduce the disability rating for residuals of bladder cancer from 100 percent to 0 percent.  At that time, the RO explained that the 100 percent rating under DC 7528 was warranted during active malignancy or antineoplastic therapy and that a November 2006 letter from Dr. Geraniotis revealed that the Veteran's bladder cancer had been in remission since earlier that year.  Also, an April 2007 VA examination report indicated that he had done well since an April 2006 cystoscopy.  Thus, the evidence showed that his bladder cancer was in remission.  

The May 2007 rating decision notified the Veteran that he had a period of 60 days within which to submit additional evidence showing that the reduction should not have been made and that if additional evidence was not received within that period, the rating would be reduced.  Therefore, the May 2007 decision provided proper notice in accordance with 38 C.F.R. § 3.105(e).

In the August 2007 rating decision, the RO reduced the disability rating for residuals of bladder cancer from 100 percent to 0 percent, effective November 1, 2007.  The reduction was based on a finding that there was no evidence of active malignancy or antineoplastic therapy or significantly disabling residuals of urinary incontinence or frequency.  In October 2010, a 20 percent rating was assigned for residuals of bladder cancer based on urinary frequency, effective November 1, 2007.

In the November 2006 letter Dr. Geraniotis reported that the Veteran's bladder cancer had been in remission since earlier that year.

A mandatory VA examination, conducted for purposes of assessing the severity of the Veteran's residuals of bladder cancer pursuant to DC 7528, was conducted in April 2007.  The examiner who conducted the examination noted that only a temporary claims file and clinical records were available for review.  The examiner noted that microhematuria was discovered in 2004, and the Veteran was diagnosed as having bladder cancer at that time.  He underwent a transurethral resection of the bladder.  A recurrence of cancer was discovered by cystoscopy in April 2006 and was resected.  He had done well ever since that time and had no gross hematuria at the time of the April 2007 VA examination.

The Veteran further reported some difficulty voiding with severe frequency and urgency and a slow stream.  Although he did not have incontinence, he wore Depends for protection on long trips.  There was nocturia, but no recurring urinary tract infections, acute nephritis, or hospitalizations for urinary tract disease.  He did not have to catheterize or dilate his penis and did not have any drains.  He experienced erectile dysfunction ever since radiation treatment for prostate cancer.

The examiner noted that a urinalysis conducted in April 2007 revealed 3 red blood cells in the urine (hematuria); and diagnosed bladder cancer.

In a July 2007 statement (VA Form 21-4138), the Veteran reported that he was scheduled for a cystoscopy in November 2007 and requested that the RO delay any rating reduction for 60 days, pending the results of the scheduled cystoscopy.

In a letter dated on October 1, 2007, Dr. Geraniotis stated that a cystoscopy had been conducted on that date.  The testing revealed some radiation changes in the bladder and two very small bladder tumors which were identified and fulgurated.

An October 2007 VA outpatient urology treatment note indicates that the Veteran had two small bladder tumors, which had been fulgurated by his private treatment provider earlier that month.

The August 2007 rating reduction was based on the April 2007 VA examination report which referenced Dr. Geraniotis' November 2006 statement that the Veteran's bladder cancer had been in remission since earlier that year.  However, the August 2007 decision did not acknowledge or discuss the finding of red blood cells in the urine during the April 2007 urinalysis or the diagnosis of current bladder cancer.  The diagnosis was significant because the same examiner had diagnosed only "a history of bladder cancer" on the previous VA examination in April 2006.

The Board notes that the Veteran has also been diagnosed as having prostate cancer and that blood in the urine (hematuria) is a symptom of both bladder cancer and prostate cancer.  Mayo Foundation for Medical Education and Research, www.mayoclinic.com/health/blood-in-urine.  Prostate cancer is not service-connected.  However, where an examiner is unable to distinguish the symptoms of a service-connected disability from non-service connected manifestations, all the manifestations will be considered part of the service-connected disability.  Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996)).  

As the evidence reveals that the symptoms of the Veteran's service-connected bladder cancer and non-service connected prostate cancer cannot be distinguished, the Board will attribute the hematuria to residuals of bladder cancer for the purposes of assessing the severity of that disability.

Furthermore, prior to the August 2007 rating decision the Veteran reported that he was scheduled for a pending cystoscopy to assess the severity of his bladder cancer.  The evidence of hematuria in April 2007 is consistent with the findings of active bladder tumors in October 2007.

Given the evidence of recurrence of bladder cancer at the time of the rating reduction, the reduction in the disability rating for residuals of bladder cancer from 100 percent to 20 percent was not in accordance with applicable laws and regulations.  The reduction was void ab initio, and the 100 percent disability rating is restored.  

TDIU

VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992).

A TDIU is provided where the combined schedular evaluation for service connected diseases and disabilities is less than total, or 100 percent.  38 C.F.R. § 4.16(a).  A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect.  VAOPGCPREC 6-99; 64 Fed. Reg. 52,375 (1999).

The current claim for a TDIU arose after the appeal of the reduction in the disability rating for residuals of bladder cancer from 100 percent.  Hence the restoration of the 100 percent rating for residuals of bladder cancer renders the claim for a TDIU moot.  The appeal as to the TDIU issue is therefore, dismissed. 


ORDER

Entitlement to service connection for a prostate disability, to include as secondary to ionizing radiation, is denied.

The reduction in the disability rating for residuals of bladder cancer from 100 percent to 20 percent was improper and the 100 percent rating is restored, effective November 1, 2007; the appeal is granted. 

The appeal, as to entitlement to a TDIU, is dismissed.




____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs