Citation Nr: 1300540 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 07-10 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for prostate cancer, including as the result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The veteran had active service from July 1944 to August 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Subsequently, the Veteran's claims file was transferred to the jurisdiction of the RO in Los Angeles, California. In September 2009, the Veteran testified at a Board hearing at the local RO (i.e., Travel Board hearing); a transcript of that hearing is of record. In January 2010, the Board remanded the issue for further development, which has been completed. The case has been returned to the Board for appellate consideration. The Board notes that in a September 2006 rating decision, the RO denied service connection for hearing loss and tinnitus. The Veteran perfected his appeal. In January 2010, the Board continued to deny the claims and these matters are no longer on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran was exposed to ionizing radiation as a result of his in-service duties within 10 miles of the city limits of Hiroshima during the relevant time period (between August 1945 and June 1946). 2. The Veteran has been diagnosed as having prostate cancer, a radiogenic disease. 3. The Veteran's prostate cancer first manifested many years after service and is unrelated to any incident of service, including exposure to ionizing radiation. CONCLUSION OF LAW Prostate cancer was not incurred in or aggravated by the Veteran's active service, and is not proximately due to or the result of exposure to ionizing radiation. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In an August 2007 pre-adjudication letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The August 2007 letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). 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). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the Veteran's claims, including VA treatment records. The Veteran has not identified any private treatment records. In August 1946, the Veteran's separation qualification record and separation examination were received at VA. In March 2006, VA requested complete service treatment records (STRs); the National Personnel Records Center (NPRC) indicated that the Veteran's service treatment and personnel records were fire-related and unavailable. In June 2006 correspondence, the Veteran was notified that his military records were destroyed by a fire in 1973 and that further efforts to obtain such records would be futile. In August 2007, VA requested service personnel records and confirmation of any radiation risk activity; however, NPRC again reported that the record was fire-related and the information requested could not be reconstructed. In April 2008, the Defense Threat Reduction Agency (DTRA) acknowledged that the Veteran's service records were destroyed and searched alternative records, such as the unit morning reports for "B" Battery, 64th Field Artillery Battalion to provide an outline of the Veteran's service. Although the records did not document the Veteran's presence with the American occupation forced in Hiroshima or Nagasaki, Japan, the Board found the Veteran's lay statements regarding service within 10 miles of the city limits of Hiroshima during the relevant time period credible and conceded radiation exposure in the January 2010 remand. Consequently, a remand to obtain the missing treatment records is not required as it would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran. See 38 C.F.R. § 3.159; Bernard v. Brown, 4 Vet. App. 384 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In the January 2010 remand, the Board instructed the RO/Appeals Management Center (AMC) to obtain a dose estimate from the DTRA based on the Veteran's credible history of exposure. If positive results were found, then the claim was to be referred to the Under Secretary of Benefits for consideration under 38 C.F.R. § 3.311(c), and readjudicated. In July 2010, DTRA found a dose estimate higher than zero. In July 2011, the Director of VA's Compensation and Pension Service requested an opinion from the Under Secretary for Health. Subsequently, a memorandum regarding the Veteran's radiation was obtained from the Director of Environmental Agents Service. In July 2011, after receiving the opinion, the Director of the Compensation and Pension Service determined that the evidence did not support a finding that the Veteran's prostate cancer was related to his in-service radiation exposure. Thereafter, the claim was readjudicated in a September 2012 supplemental statement of the case. The Board concludes that the AMC has complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Additional VA treatment records were obtained and uploaded into the Veteran's Virtual eFolder and considered in an September 2012 supplemental statement of the case (SSOC). All identified and available treatment records have been secured. As the Board will discuss in detail in its analysis below, VA has obtained a medical opinion regarding the etiology of the Veteran's prostate cancer. A review of the report shows that the medical specialist reviewed the Veteran's medical and radiation history, and rendered an appropriate opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that the medical opinion is adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. During the September 2011 Travel Board hearing and during a pre-hearing conference, the Veterans Law Judge discussed the issues on appeal with the appellant. 38 C.F.R. § 3.103 (2012); see Bryant v. Shinseki, 23 Vet. App. 488 (2010). These discussions resulted in no indication of relevant, outstanding evidence which had been overlooked with respect to claim of service connection for prostate cancer. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. Therefore, the duties to notify and assist have been met. The appeal is thus ready to be considered on the merits. II. Legal Criteria & Analysis When seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). Service connection may be granted on a presumptive basis for certain chronic diseases, including malignant tumors, if they are shown to be manifest to a degree of 10 percent or more within one year following the veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, there are specific diseases that may be presumptively service connected if manifest in a radiation-exposed veteran. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). A radiation-exposed veteran is one who participated in a radiation-risk activity. A radiation-risk activity includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. 38 C.F.R. § 3.309(d)(3). The term "occupation of Hiroshima or Nagasaki" means official military duties within 10 miles of the city of Nagasaki. 38 C.F.R. § 3.309(d)(3)(vi). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Second, other radiogenic diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2), found five years or more after service in an ionizing radiation-exposed veteran may also be service connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service. Radiogenic diseases under that regulation include prostate cancer. 38 C.F.R. § 3.311(b)(2). Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311(b)(4). When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest 5 years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. §§ 3.311(b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). Third, direct service connection can be established by showing that the disease or malady was incurred during or aggravated by service, a task which includes the burden of tracing causation to a condition or event during service. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In this case, there is no doubt that the Veteran had prostate cancer, which was initially diagnosed in January 2002. The Veteran contends that his prostate cancer is the result of exposure to ionizing radiation. The first question before the Board is thus whether the Veteran meets the criteria for qualification as a "radiation-exposed" veteran. The Veteran claims service connection for prostate cancer based on exposure to ionizing radiation. The Veteran, who was awarded an Army of Occupation Medal, claims that he was exposed to ionizing radiation during the occupation of Japan. Specifically, at his Travel Board hearing in September 2009, he testified that while he was in Japan, he and several other servicemen traveled to Hiroshima to distribute food, clothing, and medical supplies. He states this occurred 3 times over a three-week period, and that each time they stayed about 6 hours, for a total of 18 hours of exposure. See also June 2010 scenario of participation and radiation exposure form. As previously mentioned, the Veteran's primary records are not available, and DTRA had to reconstruct an outline of the Veteran's service through secondary sources such as the unit morning reports for "B" Battery, 64th Field Artillery Battalion. In April 2008, DTRA found that the records did not document the Veteran's presence with the American occupation forced in Hiroshima or Nagasaki, Japan. In the January 2010 remand, the Board found the Veteran's contentions of serving within 10 miles of the city limits of Hiroshima during the relevant time period (i.e. between August 1945 and June 1946) credible. Also as the military records did not establish presence at or absence from a site at which exposure to radiation is claimed to have occurred, the Veteran's presence at the site was conceded. 38 C.F.R. § 3.311(a)(4)(i) (2012). Pursuant to 38 C.F.R. § 3.309(d)(3), occupation of Hiroshima or Nagasaki, Japan is considered a "radiation-risk activity." As the Veteran has been determined to have participated in a "radiation-risk activity," he meets the criteria for qualification as a "radiation-exposed" veteran. As a "radiation-exposed" veteran, the level of his radiation exposure need not be documented, provided that he has been diagnosed as having a disease enumerated in 38 C.F.R. § 3.309(d) or other radiogenic disease. Prostate cancer is listed under 38 C.F.R. § 3.311(b)(2) as a radiogenic disease. It is not, however, among the types of diseases listed at 38 C.F.R. § 3.309(d)(2) subject to presumptive service connection in radiation-exposed veterans. Thus, in order to be entitled to service connection, the Veteran's prostate cancer must be determined by the VA Under Secretary of Health to be related to the Veteran's ionizing radiation exposure while in service, or otherwise be linked medically to ionizing radiation exposure while in service. The relevant evidence includes a scenario of participation and radiation exposure form, signed by the Veteran in July 2010, the following presumptions were made regarding the aspect of the Veteran's exposure during his participation in the occupation of Japan to ensure that his dose was not underestimated and constituted the scenario that would be used for his dose assessment: * The Veteran was assigned duties from the day of his arrival in the vicinity of Hiroshima until the day of his departure (October 31, November 6, and November 13, 1945) at the "hottest" spot in the hypocenter or in the downwind fallout area. * For each of these days, depending on which scenario provided the higher exposure potential, the Veteran either worked 24 hours per day at the hypocenter, or 4 hours per day in the downwind fallout area (even though there were no indications that military activities were concentrated in that area). * For inhalation does calculation, the intake of contaminants was characterized by parameters (resuspension, breathing rate, and particle size) with values chosen to maximize the internal dose. A July 2010 letter from the DTRA stated that the dose reconstruction applied to the Veteran's scenario description originated from the report, Radiation Dose Reconstruction: U.S. Occupation Forces in Hiroshima and Nagasaki, Japan, 1945-1946 (DNA 5512F). DTRA noted that the dose reconstruction was the basis for the worst case assumptions for the Veteran's scenario that he could have hypothetically received. The Veteran's combined external gamma and internal doses to the prostate from the inhalation and ingestion of contaminants revealed a total external gamma dose estimate of 0.001 rem and an upper bound total external gamma dose estimate of 0.003 rem. Estimates of the internal committed alpha dose to the prostate, the upper bound committed alpha dose to the prostate, the internal committed beta plus gamma dose to the prostate, and the upper bound committed beta plus gamma dose to the prostate were all 0.000 rem. DTRA noted that none of the troops participating in the occupation of Japan received a dose from neutron radiation. In a July 2011 Memorandum, the Director of Environmental Agents Service noted the above findings and used the Interactive Radioepidemiological Program of the National Institute for Occupational Safety and Health to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's prostate cancer. It was calculated that the Veteran's radiation doses were assumed to have been received as a single acute dose in the earliest year of exposure (1945), the assumption of which would increase the probability of causation. The program calculated a 99th percentile value for the probability of causation of 0.00 percent. Based on these results, the Director found it was unlikely that the Veteran's prostate cancer could be attributed to radiation exposure while in military service. In a July 2011 letter, the Director of Compensation and Pension Service cited to the above DTRA findings and also to the calculations by the Interactive Radioepidemiological Program of the National Institute for Occupational Safety and Health estimating the likelihood that exposure to ionizing radiation was responsible for the Veteran's prostate cancer. The Director also noted that the Veteran was 19 years old when he was exposed to ionizing radiation and prostate cancer manifested 56 years after exposure to ionizing radiation. The Veteran smoked three packs of cigarettes a day for 50 years prior to quitting in 1991. Additionally, the Director observed that the Veteran's DD Form 214 reflected that he was a white male with brown eyes and black hair, was 5 feet 10 inches in height, and weighed 145 pounds. He was a married U.S. citizen with two dependents. Post-service employment was in the restaurant business for 30 years. There was no immediate family history of cancer or leukemia. Following review of the evidence in its entirety, the Director determined that there was no reasonable possibility that the Veteran's prostate cancer was the result of his radiation exposure during service. The Board finds the July 2011 opinion is probative as it is definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran and his representative have been accorded ample opportunity to present competent medical evidence in support of his claim; they have failed to do so. See 38 U.S.C.A. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits). Because the opinion obtained by the VA determined that the Veteran's prostate cancer was not related to ionizing radiation exposure while in service, in order for service connection to be warranted in this case the evidence must show that his prostate cancer is directly related to his active military service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To date no medical professional has attributed the Veteran's prostate cancer to active military service. Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, there is no competent evidence establishing a medical nexus between military service and the Veteran's prostate cancer. Furthermore, the record does not show and the Veteran has not claimed that his symptoms began in service or have continued since service. Rather, the condition did not manifest until more than five decades after service discharge. In view of the lengthy period without complaints or treatment, there is no evidence of continuity of symptomatology and this weighs against the claim. Therefore, service connection on a direct basis likewise fails. The Board acknowledges that it must fully consider the lay assertions of record. In this regard, a layperson is competent to report on the onset of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011 see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. Competency of evidence differs, however, from the weight and credibility assigned to evidence. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination that addresses the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify as to his observations and lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Jandreau at 1376-77; Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Indeed, it was the Veteran's competent testimony regarding his presence in Hiroshima that the Board found credible that established his exposure to radiation. The question, however, of the etiology of the Veteran's prostate cancer is a complex question unlike testimony as to the presence of a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). Although the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of his prostate cancer and its relationship to radiation exposure in service, as this is not readily subject to lay observation and requires appropriate medical expertise. See Barr v. Nicholson, 21 Vet. App. 303(2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render an opinion regarding radiological or medical issues regarding the etiology of his prostate cancer. See 38 C.F.R. § 3.159(a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, in the present case, the Board gives more credence and weight to the July 2011 medical opinion rendered by a physician who serves as a Director of the Environmental Agents Service than by the Veteran's lay assertions. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for prostate cancer, including as the result of exposure to ionizing radiation, is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs