Citation Nr: 1127772 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 06-22 169 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Entitlement to service connection for colon cancer as a result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran INTRODUCTION The Veteran had active military service from June 1950 to May 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Indianapolis, Indiana RO. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's colon cancer is not attributable to military service, including any exposure to ionizing radiation. CONCLUSION OF LAW The Veteran does not have colon cancer that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he should be awarded service connection for colon cancer as a result of exposure to ionizing radiation during military service. He alleges that he was stationed at Nellis Air Force Base in Nevada during nuclear testing and that he was exposed to radiation when he visited Hiroshima, Japan. In cases where malignant tumors are manifested to a compensable degree within a year of separation from qualifying military service, incurrence of the disease may be presumed to have been during service. 38 C.F.R. §§ 3.307, 3.309. Additionally, absent affirmative evidence to the contrary, certain diseases shall be service connected if they become manifest in a "radiation-exposed veteran" even if there is no evidence of the disease during the period of service. 38 U.S.C.A. § 1112(b); 38 C.F.R. §§ 3.307; 3.309(d)(1). The list of diseases includes the following: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary gland, cancer of the urinary tract, bronchiolo-alveolar carcinoma, cancer of the bone, cancer of the brain, cancer of the colon, cancer of the lung, and cancer of the ovary. 38 C.F.R. § 3.309(d)(2)(i). A "radiation-exposed veteran" includes a veteran who, while serving on active duty, participated in a radiation-risk activity, which includes participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d)(3). On-site participation means, during the official operational period of a nuclear test, presence at the test site, or performance of official military duties in connection with ships, aircraft, or other equipment used in direct support of the test. Id. Other regulations may also apply. The provisions of 38 C.F.R. § 3.311 (2010) apply when a "radiogenic disease" becomes manifest after service, the presumptions mentioned above do not provide a basis for a grant of service connection, and it is contended the disease is the result of exposure to ionizing radiation in service. An assessment will be made as to the size and nature of the radiation dose so that a medical opinion may be obtained. 38 C.F.R. § 3.311(a). "Radiogenic diseases" include 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). In order to obtain a dose assessment for the Veteran's exposure to ionizing radiation during military service, the relevant records are to be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). A request from the Department of Defense is not in order as that department is only contacted for claims based on "participation" in atmospheric nuclear weapons tests or participation in the occupation of Hiroshima or Nagasaki, Japan, which is not claimed by the appellant. 38 C.F.R. § 3.311(a)(2)(i-ii). Subsequent to the dose assessment, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). This regulation indicates that the Under Secretary for Benefits will make a determination as to whether it is at least as likely as not that the Veteran's disease resulted from exposure to radiation in service. 38 C.F.R. § 3.311(c)(1)(i). An advisory opinion may be requested from the Under Secretary of Health. 38 C.F.R. § 3.311(c)(1). Factors to be considered in the determination include: the probable dose, the relative sensitivity of the involved tissue, the veteran's gender and pertinent family history, the veteran's age at time of exposure, the time-lapse between exposure and onset of disease, and the extent to which other factors may have contributed to the development of the disease. 38 C.F.R. § 3.311(e). Additionally, a claimant is not precluded from proving that he has a disability as a result of in-service exposure to ionizing radiation despite the fact that the claimed disability is not a listed radiogenic disease. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). In the present case, the appellant is contending that colon cancer is the result of the exposure to ionizing radiation in service. Significantly, he has not asserted, and the record does not show, that he "participated" in on-site testing. There is no indication that he was present at the test site during an operational period or that he had to perform duties in connection with equipment used at any operation conducted in Nevada during his period of service. Consequently, the Veteran is not a "radiation-exposed" veteran as contemplated by 38 C.F.R. § 3.309(d). As for application of 38 C.F.R. § 3.311, estimates of the Veteran's exposure have been provided by the United States Air Force. The time of diagnosis of the Veteran's colon cancer, his military service at Nellis Air Force Base during the 1950s when several tests were conducted at the Nevada Test Site, his age and gender, his visit to Hiroshima, and an Interactive RadioEpidemiological Program were relied on to obtain an opinion regarding the likelihood that radiation exposure during military service led to the development of colon cancer. The total dose estimate was 0.5 rem and a March 2010 report by the VA Director, Radiation and Physical Exposures, indicates that the probability of causation was 0.91 percent. Based on such a result, the Director, V. Cassano, M.D., opined that it was unlikely that the Veteran's colon cancer could be attributed to radiation exposure in service. A March 2010 letter from the VA Director of Compensation and Pension Service shows that, given the information about the Veteran's service, the onset of his cancer, the dose estimate, and the opinion by Dr. Cassano, there was no reasonable possibility that the Veteran's colon cancer resulted from exposure to radiation in service. These opinions are uncontradicted in the record. The Veteran has contended that there is a connection between cancer and the radiation exposure, but there is no suggestion that he is competent to provide such an opinion. Also, there is no competent medical evidence suggesting a direct connection to service without regard to the presumptions of 38 C.F.R. § 3.307 or the procedural requirements of 38 C.F.R. § 3.311. Likewise, there is no evidence that cancer was manifested within a year of military service. Without evidence linking the cancer to military service, and in light of the competent opinion evidence regarding the likelihood that colon cancer began as a result of radiation exposure during service, the Board finds that the preponderance of the evidence is against the Veteran's claim. A grant of service connection is therefore not warranted. The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2011)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request a veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO received the Veteran's claim of service connection for, among other things, colon cancer in November 2004. In January 2005 and in November 2006, the RO sent letters notifying him of the evidence required to substantiate that claim. The letters advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The RO further advised the Veteran on the types of evidence he could submit that would support his claim of service connection, such as statements from military medical personnel, evidence of medical treatment since service, employment physical examination reports, and statements by persons who knew of the Veteran's disability. The 2006 letter further included the notice elements required by Dingess for how VA determines disability ratings and effective dates. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the letters comply with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board also finds that VA has fulfilled its obligation to assist the Veteran. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes private medical evidence and statements from the Veteran, to include hearing testimony. Further, VA undertook the procedural development required by 38 C.F.R. § 3.311, obtaining the necessary information and opinions to address a radiogenic disease, in this case, colon cancer. There is no indication that additional pertinent evidence should have been obtained. Consequently, the Board concludes that there was no duty to notify or assist that was unmet. ORDER Entitlement to service connection for colon cancer due to ionizing radiation is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs