Citation Nr: 1306722	
Decision Date: 02/27/13    Archive Date: 03/01/13

DOCKET NO.  07-00 450	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for cancer of the left kidney, status post-operative nephrectomy, claimed as due to exposure to ionizing radiation.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

J.A. Flynn, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force (Air Force) from August 1955 to July 1958.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  In October 2006, the Veteran requested a hearing before a Decision Review Officer; in November 2006, the Veteran withdrew this hearing request in writing.  

This matter has previously been before the Board, most recently in August 2011, when it remanded the case for additional development of the evidence of record.  As an initial matter, the Board notes that when its remand orders are not complied with, it errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  In the instant case, the Board remanded the claims in order to allow the VA Under Secretary for Health to prepare an estimate of the Veteran's probable dose exposure to ionizing radiation in service.  In September 2011, the VA Director of the Environmental Agents Service (DEAS) responded to this request on behalf of the VA Under Secretary for Health.  The Board finds that there has been effective compliance with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.)

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).


FINDING OF FACT

Cancer of the left kidney, status post-operative nephrectomy, was not incurred as a result of any incident of active duty service.



CONCLUSION OF LAW

Cancer of the left kidney, status post-operative nephrectomy, was not incurred in or aggravated by service, including as due to exposure to ionizing radiation.  See 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.311 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, the Board 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 preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


The Veterans Claims Assistance Act of 2000 (VCAA)

The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012).  The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from 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; and (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  See id. at 486.  Determinations concerning prejudicial error and harmless error should be made on a case-by-case basis.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

In the instant case, correspondence dated April 2005 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.  The Veteran filed his claim before the Court's 2006 decision in Dingess, and as such, he was not provided with full Dingess notice at the time of the April 2005 VCAA letter.  Instead, in November 2006, pursuant to the Court's holding in Dingess, the Veteran was provided with notice regarding the degree of disability and effective date.  Additionally, since the time of the November 2006 Dingess notice, the Veteran has been provided with several readjudications of his claim, and the Board finds that there has been no prejudice to the Veteran requiring additional notice.  The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary.

With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012).  The evidence contains all pertinent and identified VA and private treatment records.  

Unfortunately, the Veteran's service treatment records (STRs) were among those presumably lost in the 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri.  In November 2005, the RO issued a "Formal Finding on the Unavailability of Service Records," which demonstrated that the NPRC confirmed in April 2005 that the Veteran's records had likely been destroyed in the 1973 fire.  The RO sent letters to the Veteran in April 2005 and November 2005 requesting that the Veteran send any copies of his service medical records in his possession to VA, and to date the Veteran has not provided any such records.  Pursuant to the Board's April 2009 Remand, the RO made additional attempts to locate records pertinent to the Veteran's claimed exposure to radiation.  In June 2009, the RO made a Personnel Information Exchange System request for verification of exposure to radiation, to include furnishing morning reports and sick call logs from Loring Air Force Base.  A June 2009 response stated that the record needed to respond to the RO's request was fire-related, and the information requested could not be reconstructed.  In September 2010, the RO received two morning reports from April 19, 1957 and May 16, 1957, but these records did not suggest that the Veteran had been exposed to radiation.  In November 2010, the RO made a second finding that radiation exposure records relating to the Veteran were unavailable.  

With respect to the Veteran's missing STRs, the Board observes that when records are unavailable, "VA has no duty to seek to obtain that which does not exist."  Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993) (noting that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile).  The Board finds that with the above efforts, the RO has attempted to develop the record as much as possible, and any further efforts to obtain the Veteran's service treatment records would be futile.  As such, the Board finds that VA has fulfilled its duty to assist in obtaining such records.  The Board has kept this unfortunate situation in mind while addressing the Veteran's claim, and it is mindful that it has a heightened obligation both to explain its findings and conclusions and to carefully consider the benefit of the doubt doctrine.  See O'Hare v. Derwinski, 1 Vet. App. 365 (1991).

In August 2011, the Board again remanded the Veteran's claim, and though it found that the RO had taken appropriate measures to develop the record, it directed the RO/AMC to submit relevant documents from the Veteran's claims file to the VA Under Secretary for Health for the purpose of preparing a dose estimate, to the extent feasible.  The DEAS responded to this request in September 2011.  Although the response was unable to provide a specific dose estimate, as will be discussed in further detail below, the DEAS thoroughly explained why such estimate could not be prepared.

The Veteran has not been afforded with a VA examination in connection with this claim because such an examination is unnecessary.  The Veteran has contended only that his left kidney disability is related radiation exposure; he has not contended that this condition is related to any other incident of service.  Moreover, the record does not otherwise suggest a link between kidney cancer and any in-service event, disease, or injury.  Though the Veteran's STRs are missing, he has not alleged that he sought medical treatment for a kidney condition in service.  Accordingly, the Board finds that a VA examination is not required.  See 38 C.F.R. § 3.159(c)(4) (2012); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Furthermore, the Board notes that the claims file was reviewed by a physician with expertise in environmental agents from the DEAS, and this physician provided an etiological opinion.  The duty to assist has been met.

The Veteran was provided with the opportunity to testify at a hearing, but he declined this opportunity.  Thus, the duties to notify and assist have been met, and the Board will proceed to a decision.

Service Connection

The Veteran asserts that his left kidney cancer, post nephrectomy, is due to radiation exposure that he experienced in service.  

Service connection for disorders claimed as due to exposure to ionizing radiation may be established in three different ways: (a) for radiation-exposed veterans, on a presumptive basis; (b) for radiogenic disease, on a direct basis after specified development procedures are conducted, or; (c) on a direct basis by showing that the disease was incurred during or aggravated by service.  The Board will address each of these means of establishing service connection.

With respect to the first of the above-described methods of establishing service connection, "radiation-exposed veteran" means a veteran who participated in a "radiation-risk activity."  See 38 U.S.C.A. § 1112(c)(3)(A) (West 2002); 38 C.F.R. § 3.309(d)(3)(i) (2012).  "Radiation- risk activity" means: onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war of Japan during World War II resulting in an opportunity for exposure to radiation comparable to those occupying Hiroshima or Nagasaki; certain service on the grounds of a gaseous diffusion plant in Paducah, Kentucky, Portsmouth, Ohio, or at area K25 at Oak Ridge, Tennessee; or certain service on Amchitka Island, Alaska.  See 38 U.S.C.A. § 1112(c)(3)(B) (West 2002); 38 C.F.R. § 3.309(d)(3)(ii) (2012).  In the instant case, the evidence of record does not establish, and the Veteran does not claim, that he participated in any of these activities.  The Veteran is not a "radiation-exposed veteran," and presumptive service connection under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) is therefore unwarranted.

With respect to the second of the above-described methods of establishing service connection, even if a claimant does not qualify as a "radiation-exposed veteran," service connection can still 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 condition at issue is a radiogenic disease.  To consider a claim under 38 C.F.R. § 3.311, the evidence must show that: (1) the veteran was exposed to ionizing radiation in service; (2) the veteran subsequently developed a radiogenic disease; and (3) such disease first became manifest within a period specified by the regulation.  See 38 C.F.R. § 3.311(b) (2012).  "Radiogenic disease" means a disease that may be induced by ionizing radiation and includes, in pertinent part, kidney cancer; such condition must have become manifest five years or more after exposure.  See 38 C.F.R. § 3.311(b) (2012).  These provisions apply in this case because the evidence indicates that the Veteran had kidney cancer, a radiogenic disease, that first manifested in 1998, more than five years after the Veteran's discharge from service in July 1958.

Section 3.311(a) calls for the development of a radiation dose assessment when it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either 38 C.F.R. § 3.307 or § 3.309, and when it is contended that the disease is a result of ionizing radiation in service.  Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing and in claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946.  See 38 C.F.R. § 3.311(a)(2) (2012).  In all other claims involving radiation exposure, the VA Under Secretary for Health will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies.  Id.

With respect to the third of the above-described methods of establishing service connection, direct 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.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Turning to the facts in the instant case, the Veteran's separation document indicates that he served in the Air Force from August 1955 to July 1958.  The Veteran was last assigned to the 42nd Field Maintenance Squadron at Loring Air Force Base, in Limestone, Maine (Loring).  The Veteran's specialty was an airframe repair specialist.  The Veteran had no foreign or sea service.  Morning reports from April 19, 1957 and May 16, 1957 show only that the Veteran was stationed at Loring at that time.

In March 2005, the Veteran stated that he repaired B-52 and B-56 bombers in service, some of which carried nuclear bombs.  The Veteran stated that he had to wear radiation badges, and his badges were checked monthly for radiation levels.  The Veteran indicated that his radiation meter badges showed "high" readings of radiation, and he indicated that he was sent to sick call and to the Loring hospital a few times as an outpatient.  The Veteran provided no further information regarding either the nature of his illnesses or the nature of the treatment that he received.

In April 2005, the RO requested that the Air Force Medical Operations Agency provide VA with a DD Form 1141, Record of Exposure to Ionizing Radiation, or an equivalent record of occupational radiation exposure.  In July 2005, the Chief of the Radiation Protection Division and Air Force Radioisotope Committee Secretariat, from the Air Force Medical Support Agency, indicated that his organization had queried the USAF Master Radiation Exposure Registry (MRER) and all other available records regarding occupational radiation exposure monitoring.  They had found no external or internal exposure data in the MRER for the Veteran.

In May 2005, the Veteran stated again that he was exposed to radiation from January 1956 to August 1958 while assigned to the 42nd Field Maintenance Squadron, and he received medical treatment for radiation exposure at the Loring Air Force Base.  The Veteran again declined to provide any additional details regarding the nature of his symptoms at this time or the nature of the treatment that he received.  In September 2009, the Veteran stated that he was exposed to ionizing radiation between Spring 1957 and Summer 1958.  

Pursuant to the Board's August 2011 Remand, in August 2011, the VA Director of the Compensation and Pension Service forwarded the Veteran's claims file to the VA Under Secretary for Health for preparation of a probable dose estimate in compliance with 38 C.F.R. § 3.311(a)(2)(iii) (2012) and an opinion regarding the probability of a relationship between the Veteran's kidney cancer and his military service.  In September 2011, the DEAS reviewed the Veteran's claims file on behalf of the VA Under Secretary for Health, noting the history of the Veteran's kidney cancer.  The DEAS indicated that the Veteran's military service did not include participation in a "radiation-risk" activity, and it acknowledged the Veteran's contention that he wore a radiation dosimeter that had "high" readings.  The DEAS observed that the Veteran's mother underwent a mastectomy in 1992 for cancer, and the Veteran's father died of cancer.  During an August 1998 hospitalization, a CT scan of the Veteran's abdomen revealed a 5cm tumor of the left kidney.  In October 1998, the Veteran underwent a left radial nephrectomy, and pathology diagnosed clear cell carcinoma.  The DEAS noted that left kidney cancer was diagnosed 43 years after enlistment into the Air Force.  

The DEAS observed that the July 2005 note from the Air Force indicated that a search of the MRER revealed no external or internal exposure data on the Veteran.  Based on the available information, the DEAS was unable to make a dose estimate, because there was no data in the claims file to support the estimate.  Instead, the DEAS stated, an estimate of the Veteran's actual radiation exposure due to job duties would have to come from the Veteran's parent military service, in this case the Air Force (which, the Board notes, in July 2005 was similarly unable to calculate the radiation dosage received by the Veteran).  The DEAS concluded that the Veteran's claims of receiving doses of radiation so high that he needed to report to sick call were improbable.  The DEAS noted that while there may be a connection between some levels of radiation exposure and kidney cancer, there is no documented radiation exposure in the Veteran's record.  Therefore, there is no evidence to suggest that the Veteran's disease was a result of radiation exposure.  Based on these factors, the DEAS concluded that it was unlikely that the Veteran's left kidney cancer could be attributed to exposure to ionizing radiation while in the military service.  In October 2011, the Director of the VA Compensation and Pension Service provided an advisory opinion based on the information and opinion from the DEAS, and it similarly opined that there was no reasonable possibility that the Veteran's left kidney cancer was the result of his exposure to radiation in service.

Accordingly, the Board observes no evidence demonstrating exposure to ionizing radiation, and opinions from the DEAS and the Director of the VA Compensation and Pension Service that the Veteran's condition was not likely related to in-service exposure to ionizing radiation.  The only evidence that relates the Veteran's left kidney disability to his claimed exposure to ionizing radiation in-service consists of the Veteran's own statements.  The Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (that is, experiencing physical symptoms such as kidney pain).  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, namely, the etiology of kidney cancer, the issue of causation of cancer and exposure to radiation are determinations outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Thus, although the Board has carefully considered the lay contentions of record from the Veteran suggesting that his left kidney condition is related to his military service, the Board ultimately affords the objective medical evidence of record, which consistently fails to find a connection between the Veteran's left kidney condition and his military service, with greater probative weight than the Veteran's lay opinion.  

As explained above, the evidence of record does not establish that the Veteran was exposed to ionizing radiation in service, nor does the competent medical evidence of record demonstrate that there is a relationship between the Veteran's active duty service, including his claimed in-service radiation exposure, and his current left kidney disability.  Although the Board notes the Veteran's current kidney disability and claims of in-service radiation exposure, without evidence of verified radiation exposure and a medical nexus, service connection cannot be granted.  Further, the Veteran has provided no competent evidence of in-service radiation exposure and a nexus between such exposure and his kidney cancer, as is required for a grant of service connection on a direct basis.

Accordingly, the Board finds that the claim of entitlement to service connection for left kidney cancer, status post-operative nephrectomy, must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).


ORDER

Service connection for cancer of the left kidney, status post-operative nephrectomy, claimed as due to exposure to ionizing radiation, is denied.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs