Citation Nr: 1301771	
Decision Date: 01/16/13    Archive Date: 01/23/13

DOCKET NO.  10-47 083A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to service connection for prostate cancer, to include as secondary to radiation exposure.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel



INTRODUCTION

The Veteran served on active duty from May 1954 to February 1957. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  The appellant's notice of disagreement was received in July 2010.  A statement of the case was issued in October 2010, and a substantive appeal was received in December 2010.

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.  Evidence from the Defense Threat Reduction Agency (DTRA) establishes that the Veteran is a confirmed participant of Operation TEAPOT, conducted at the Nevada Test Site in 1955. 

2.  The Veteran therefore participated in a radiation risk activity, as defined by VA regulations, during service and is a radiation-exposed veteran.

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 therein.


CONCLUSION OF LAW

Prostate cancer was not incurred in or aggravated by the Veteran's active duty service, to include exposure to ionizing radiation, nor may it be presumed to have been incurred in or aggravated by such service.  38 U.S.C.A. §§ 1110, 1131; 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.311 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a) (2012). 

Duty to Notify

Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a).  The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006).  The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). 

The Veteran was advised of VA's duties to notify and assist in the development of this claim prior to its initial adjudication.  Specifically, a July 2008 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  In compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the letter also informed him of disability rating and effective date criteria.  It is not alleged that notice was less than adequate.

Duty to Assist

With the exception of his February 1957 service separation examination report, the Veteran's service treatment records (STRs) are unavailable and, according to the National Personnel Records Center, may have been destroyed in a fire that occurred at their facility.  The RO made a formal finding of unavailability of such records in February 2009.  In cases where records once in the hands of the government are lost, there is a heightened obligation to explain the Board's findings and conclusions, and to consider carefully the benefit-of-the-doubt rule.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  However, the Veteran does not claim to have sought in-service treatment for prostate complaints.  His participation in a radiation-risk activity was verified.

Pursuant to the Veteran's contention that his prostate cancer is due to his exposure to radiation in service, the Board observes that his participation in a radiation risk activity has been confirmed, dose estimates of radiation exposure during his active service in Operation TEAPOT were obtained and an RO administrative decision (based on a December 2006 VA memo from Chief Public Health and Environmental Hazards (PHEH) Officer which recommends that Veteran's Benefits Administration (VBA) staff use screening doses to evaluate cases instead of submitting them to the PHEH office) based on these dose estimates of a relationship between the Veteran's prostate cancer and his exposure in service has been obtained.  Therefore, all development pursuant to 38 C.F.R. § 3.311 has been undertaken. 

The record shows that the Veteran has not been afforded a VA examination in connection with the prostate cancer claim.  The Board finds that such an examination or a medical opinion is not necessary in this case because VA Compensation and Pension (C&P) Service has furnished detailed guidelines for deciding expedited prostate cancer compensation claims for radiation-exposed veterans.  Further, the post-service evidence demonstrates that prostate cancer manifested approximately 49 years following service and the Veteran has not furnished statements indicating a continuity of prostate symptoms or reported any periods of treatment for the prostate or prostate cancer prior to when he was first diagnosed with prostate cancer in 2006.  Given the absence of an indication of a relationship between the Veteran's active service or his radiation exposure and his currently diagnosed prostate cancer, the Board finds that a VA examination or opinion is not necessary in this case.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Notably, although his private physician has noted that the Veteran's prostate cancer "may" have been the result of his exposure to excessive radiation during active duty; given the absence of an explanation of rationale for this statement and upon consideration of C&P's detailed guidelines for deciding expedited prostate cancer compensation claims for radiation-exposed veterans, the Board finds that the record as it stands includes adequate competent evidence to allow for adjudication of the Veteran's claim and no further action is required.  

The Board notes that the Veteran requested a Travel Board hearing and one was scheduled for him.  However, the letter notifying him of the date of the hearing was returned as undeliverable.  The file indicates that the RO attempted to contact the Veteran at his address of record; however, his whereabouts are unknown.  The Court has stated that if a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Although a hearing, as was scheduled persuant to the Veteran's request, would be helpful, the Veteran's failure to report for the hearing and his virtual disappearance dictate that the appeal be based on the present record.  The Board is satisfied that the RO has made sufficient effort to locate the Veteran.  Although VA has a duty to assist the claimant in developing a claim, that duty is not a one-way street.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.103(a); Wood, supra.  Accordingly, no further assistance to the Veteran is required to comply with 38 U.S.C.A. § 5103(a).

VA has obtained private treatment records identified by the Veteran.  All known and available records relevant to the issues on appeal have been obtained and associated with his claims file; and the Veteran and his representative have not contended otherwise.  VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time.

Legal Criteria, Factual Background and Analysis 

Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal.  (The Virtual VA file does not contain any evidence pertinent to the matter at hand.)  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  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).

Certain chronic diseases (including malignant tumors) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for malignant tumors).  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Service connection for a disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods.  See Hilkert v. West, 12 Vet. App. 145 (1999).

First, if a veteran exposed to radiation during active duty later develops one of the diseases listed in 38 U.S.C.A. § 1112(c) or 38 C.F.R. § 3.309(d), a rebuttable presumption of service connection arises.  See 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  These diseases are ones in which the VA Secretary has determined that a positive association with radiation exposure exists. 

Second, service connection may be established if a radiation-exposed veteran develops a "radiogenic disease" (one that may be induced by ionizing radiation, either listed at 38 C.F.R. § 3.311(b) or established by competent scientific or medical evidence to be a radiogenic disease), and if the VA Under Secretary for Benefits (USB) determines that a relationship does in fact exist between the disease and the veteran's exposure in service.  When a claim is based on a disease other than one of those listed in 38 C.F.R. § 3.311(b)(2), VA shall nevertheless consider the claim under the provisions of 38 C.F.R. § 3.311 provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease.  38 C.F.R. § 3.311(b).

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 or 38 C.F.R. § 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)(1).  When dose estimates provided are reported as a range of doses to which a veteran may have been exposed, exposure at the highest level of the dose range reported will be presumed.  38 C.F.R. § 3.311(a)(2).

When it has been determined that a veteran has been exposed to ionizing radiation in service, and he subsequently develops a potentially radiogenic disease, the claim will be referred to the USB for further consideration.  The USB is to consider the claim with reference to specified factors and may request an advisory medical opinion from the Under Secretary for Health; if, after this consideration, the USB determines that there is no reasonable possibility that the veteran's disease resulted from radiation exposure in service, then the USB shall so inform the RO in writing, setting forth the rationale for this conclusion.  38 C.F.R. § 3.311.

Dose data is requested from the Department of Defense in claims based on participation in atmospheric nuclear testing, and claims based on participation in the U.S. occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946.  38 C.F.R. § 3.311(a)(2).

In all other claims involving radiation exposure, a request will be made for any available records concerning the veteran's exposure to radiation.  These records normally include but may not be limited to the veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran's radiation dose in service.  All such records will 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).

The third and final way of establishing direct service connection is by showing that the disease or malady was incurred during or aggravated by the active military service, a task which includes the burden of tracing causation to a condition or event during the active military service.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997).

The record does not contain any evidence that prostate cancer was manifested in service or in the Veteran's first post-service year.  Although, as noted above, with the exception of his February 1957 service separation examination report, the Veteran's STRs are unavailable; he does not claim to have sought in-service treatment for prostate complaints (and the February 1957 separation examination report shows that GU (genitourinary) examination was clinically normal).  The record shows that prostate cancer was first diagnosed in May 2006, approximately 49 years after his discharge from service.  The Veteran does not claim to have sought treatment for prostate related complaints prior to 2006.  Consequently, service connection for prostate cancer on the basis that such malignant tumor became manifest in service (or on a presumptive basis as a chronic disease under 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309) is not warranted.  Prostate cancer is not among the listed diseases that may be presumptively service-connected if in radiation-exposed Veterans.  Consequently, service connection for prostate cancer on a presumptive basis as a disease specific to radiation-exposed veterans under 38 C.F.R. § 3.309(d)(2) is not warranted. 

Prostate cancer is deemed a radiogenic disease under 38 C.F.R. § 3.311(b)(1)(2) and it manifested within the period specified by regulation.  

The RO requested confirmation of the Veteran's radiation exposure from the Defense Threat Reduction Agency (DTRA).  38 C.F.R. § 3.311(a).  In January 2010, DTRA confirmed that the Veteran was involved with Operation TEAPOT, conducted at the Nevada Test Site in 1955, after constructing a scenario describing the Veteran's participation activities and with consideration of his recollections and statements.  DTRA noted that the Veteran had reviewed the description as shown on the scenario and his comments had been considered in developing his dose assessment.  [Notably, a December 2009 letter from the Veteran reflects his disagreement with the Operation TEAPOT departure date of March 5, 1955, and recalls his participation in further testing.]  Additionally, it was noted that, at its June 2006 meeting, the Veteran's Advisory Board on Dose Reconstruction recommended a screening process for prostate cancer cases to reduce the time required to generate an analysis of prostate radiation dose.  It established conservative theoretical maximum doses that utilized actual radiation level measurements and technical calculations from atmospheric nuclear test detonations, previously established prostate doses, bounding assumptions about exposure scenarios, and radiation science fundamentals.  These maximum doses were much higher than doses that were estimated in previous radiation dose assessments, thus providing maximum benefit of the doubt to veterans and ensuring that the reported doses were not less than actual doses.  The reported doses were based on worst-case parameters and assumptions, not all of which the veteran may have encountered.  Based on the foregoing, DTRA estimated that the Veteran could have received during his participation in Operation TEAPOT not more than an external gamma dose of 16 rem, external neutron dose of 0.5 rem, internal committed dose to the thyroid (alpha) of 0 rem, and internal committed dose to the thyroid (beta + gamma) of 1 rem.

It is noted that the RO did not obtain a formal medical opinion regarding whether the Veteran's prostate cancer is related to his in-service radiation dose.  That is because the Chief Public Health and Environmental Hazards Officer indicated in a December 2006 memorandum that it was unable to provide such an opinion based upon the multitude of similar claims under review.  The VA C&P Service did, however, furnish detailed guidelines for deciding expedited prostate cancer compensation claims for radiation-exposed veterans.  

Those guidelines were incorporated in a VA C&P worksheet, which was used to convert the Veteran's aforementioned prostate screening dose assessments, based on gamma/beta radiation, to an estimate based on neutron and alpha radiation.  Significantly, the C&P guidelines worksheet also indicated that, as all the adjusted total veteran prostate doses for Hiroshima/Nagasaki and Nevada Test Site cases are less than the applicable screening doses, it is unlikely that prostate cancer in these groups of veterans can be attributed to ionizing radiation exposure in service.  

Following the December 2006 instructions from the Under Secretary of Health and based upon the C&P guidelines worksheet, the January 2010 DTRA dose estimate, and VA and non-VA treatment records, the RO issued an Administrative Decision in February 2010 concluding that it was unlikely that the Veteran's prostate cancer resulted from the radiation exposure during service.  The Veteran's adjusted total prostate radiation dose was determined to be 19 rem.  According to the C&P guidelines, such a dose level carried less than a 50 percent probability of causing prostate cancer.  As the Veteran in this case was exposed in Operation Teapot, a Nevada Test Site operation, and his dose level carried less than a 50 percent probability of causing prostate cancer; his prostate cancer was determined to be less likely than not due to that radiation exposure.

Therefore, while the Veteran has a radiogenic disease as specified under 38 C.F.R. § 3.311(b)(1)(2), which manifested within the period specified by regulation, and was exposed to ionizing radiation as the result of his participation in Operation TEAPOT conducted at the Nevada Test Site, the evidence does not demonstrate that the Veteran's exposure to ionizing radiation caused his current prostate cancer.  As such, service connection cannot be established under 38 C.F.R. § 3.311. 

With regard to the third and final method for demonstrating service connection, the Board will now consider if direct service connection is warranted.

In statements presented throughout the duration of the appeal, the Veteran has maintained that his current prostate cancer is due to exposure to ionizing radiation during his active service.  As noted, he does not claim to have sought in-service treatment for prostate complaints and GU examination on February 1957 service separation was clinically normal.  It is noted that, in a June 2008 letter, his private urologist noted that the Veteran's prostate cancer "may" have been the result of his exposure to excessive radiation during active duty.  However, the private physician gave no indication that this was a likelihood or even at least as likely as not to be the cause of the Veteran's prostate cancer.  In addition, this physician did not attempt or indicate that he was even qualified to attempt to provide a dose estimate for the Veteran's exposure to radiation during his active duty service 51 years earlier.  As such, this is not sufficient to raise a reasonable doubt.  See, e.g., Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the appellant may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative).  The Board also notes that this physician gave no indication that he reviewed the Veteran's claims folder, nor did he offer a detailed rationale for this possible nexus.  Consequently, the Board finds the determination made as result of the application of the C&P's instructions regarding the adjudicating of prostate cancer claims to be more probative. 

After a review of the record, the Board concludes that entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation, is not warranted on a direct service connection basis.  The Board does not dispute the fact that prostate cancer can be caused by exposure to ionizing radiation.  However, the question presented in this appeal is not whether radiation exposure can cause prostate cancer generally, but whether the Veteran's prostate cancer diagnosed in 2006 is at least as likely as not attributable to his exposure to ionizing radiation during his participation in Operation TEAPOT in 1955.  As VHA has specifically stated that, because all the adjusted total veteran prostate doses for Hiroshima/Nagasaki and Nevada Test Site cases are less than the applicable screening doses, it is unlikely that prostate cancer in these groups of veterans can be attributed to ionizing radiation exposure in service, the Board finds that service connection cannot be granted for prostate cancer due to in-service exposure to radiation.

The Veteran's own assertions in this matter are not competent evidence as the critical question is one beyond lay observation.  The matter of a nexus between current prostate cancer, shown manifest 49 years postservice and remote service/environmental factors therein is a medical question that requires medical expertise.  The Veteran has not demonstrated that he has any medical expertise.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court"); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

Accordingly, the Board must conclude that the preponderance of the evidence is against the claim.  As such, the benefit of the doubt doctrine is not for application and the claim is denied.  38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

The appeal is denied.



______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs