Citation Nr: 1307078 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 12-20 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for squamous cell carcinoma of the tongue as a result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from November 1950 to September 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Phoenix, Arizona RO certified the appeal to the Board. In October 2012, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. During the hearing, the Veteran withdrew his claim of service connection for prostate cancer. As such, that claim is dismissed. 38 C.F.R. § 20.204 (2012). In November 2012, the Veteran submitted a medical opinion from Craig N. Bash, M.D., a private physician. In a February 2012 e-mail, the Veteran stated that he wished to waive initial consideration of this additional evidence by the RO. See 38 C.F.R. § 20.1304(c) (2012). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issue 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. There is credible evidence that the Veteran was exposed to ionizing radiation in service. 2. The preponderance of the evidence is against finding that squamous cell carcinoma of the tongue is related to the Veteran's active military service or events therein, to include exposure to ionizing radiation. CONCLUSION OF LAW Squamous cell carcinoma was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in September 2010 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, affording a VA examination. For the reasons discussed below, the Board finds that the evidence is adequate to make a determination on the claim. In response to a request for the Veteran's service treatment records, the National Personnel Records Center indicated that the records were "fire-related" (i.e., destroyed or damaged by a 1973 fire at that facility), and that copies of all available records were mailed. The records received included an original copy of the Veteran's discharge examination, along with copies his entrance examination and other treatment and dental records. There is no indication of any missing or unavailable pertinent records. Significantly, the Veteran does not allege that his cancer had its onset in service, but rather he argues that it is related radiation exposure therein. As will be explained below, the Veteran's radiation exposure has been conceded and the only remaining question is whether his tongue cancer is related to his in-service radiation exposure. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis The Veteran seeks entitlement to service connection for squamous cell carcinoma of the tongue as a result of exposure to ionizing radiation in service. Service connection for a disability based upon exposure to ionizing radiation can be awarded on three different legal bases. The first basis is a presumptive basis for diseases specific to radiation exposed veterans under 38 C.F.R. § 3.309(d). The second basis is based on exposure to ionizing radiation with the subsequent development of a radiogenic disease under 38 C.F.R. § 3.311. Finally, the Veteran is entitled to service connection if he can establish that a disability warrants service connection as defined by the general laws and regulations governing VA compensation entitlement, which is on a direct or presumptive basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for squamous cell carcinoma under any theory of entitlement. The provisions of 38 C.F.R. § 3.309(d)(1) provide that the diseases listed in 38 C.F.R. § 3.309(d)(2) shall be service-connected if they become manifest in a 'radiation-exposed veteran' as defined in 38 C.F.R. § 3.309(d)(3). There are 21 types of cancer which are presumptively service connected under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) if the veteran has "participated in a radiation-risk activity." Squamous cell carcinoma of the tongue is not included in this list. Therefore, the Veteran may not be service connected for squamous cell carcinoma of the tongue under this regulation. As to the second method, 38 C.F.R. § 3.311 provides for development of claims based on a contention of radiation exposure during active service and post-service development of a radiogenic disease. The provisions do not give rise to a presumption of service connection, but rather establish a procedure for handling claims brought by radiation exposed veterans. See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). The regulation provides a list of recognized radiogenic diseases in 38 C.F.R. § 3.311(b)(2) , and the regulatory time period when the diseases must become manifest. 38 C.F.R. § 3.311(b)(5). Although cancer of the tongue is not specifically listed, "any other cancer" is considered a radiogenic disease. 38 C.F.R. § 3.311 (b)(2)(xxiv). Furthermore, the Veteran's cancer manifested 5 years or more after exposure; therefore meeting the regulatory time requirements. 38 C.F.R § 3.311(b)(5). Therefore, as will explained below, the RO undertook the additional development outlined in 38 C.F.R. § 3.311. The Veteran's DD Form 214 indicates that he was a radiological specialist; however, his personnel records do not include a Record of Occupational Exposure to Ionizing Radiation (DD Form 1141). In a September 2010 letter, the Defense Threat Reduction Agency confirmed that the Veteran participated in Operations TUMBLER-SNAPPER and UPSHOT-KNOTHOLE at the Nevada Test Site, and Operations IVY and CASTLE at the Pacific Proving Ground. In May 2011, the Defense Threat Reduction Agency prepared a Radiation Dose Assessment Report. This report was based on the Veteran's detailed responses to questionnaires relating to his duties during nuclear device testing, his proximity to each site, his exposure to fallout, and his participation in decontaminating aircraft. The report was also based on service records and operational documents and was prepared in accordance with the Nuclear Test Personnel Review Radiation Dose Assessment Standard Operating Procedures Manual using the standard procedures, standard methods, and scientific principles and studies described therein. Using the expedited process, it was determined that the maximum doses the Veteran could have received were 18 rem of external gamma radiation, 0.5 rem of external neutron radiation, and 0.3 rem internal committed alpha dose to the tongue. To afford the Veteran the benefit of the doubt, beta plus gamma doses to the tongue were also calculated. It was estimated that the Veteran could have received 2.675 rem of internal committed beta plus gamma radiation to the tongue; the upper bound committed beta plus gamma radiation to the tongue was estimated to be 26.742 rem. The dosage information prepared by the Defense Threat Reduction Agency was then forwarded to the Director of VA's Environmental Agents Service for an opinion as to the likelihood that the Veteran's tongue cancer was related to radiation exposure in service. In June 2011, the Director, a physician and health physicist, opined that it was unlikely that the Veteran's tongue cancer was related to radiation exposure in service. The opinion was based on calculations derived from the Interactive Radioepidemiological Program of the National Institute for Occupational Safety and Health. For purposes of calculation, it was assumed that the Veteran's radiation doses were received as a single acute dose in the earliest year of exposure (1952). It was noted that this assumption would tend to increase the probability of causation; therefore benefiting the Veteran's claim. The program calculated a 99th percentile credibility value for the probability of causation of 26.36 percent for tongue cancer. Based on the evidence of record the physician Director of VA's Environmental Agents Service opined that it was unlikely that the Veteran's tongue cancer could be attributed to radiation exposure while in military service. Later in June 2011, the Director of VA's Compensation Service opined, following a review of the evidence in its entirety, that there was no reasonable possibility that the Veteran's tongue cancer was the result of radiation exposure during service. A VA oral and dental examination was conducted in April 2012. The examiner indicated that the tongue tissue appeared within normal limits except for a small surgical scar. The examiner reviewed the common dental literature and found no reference associating oral cancer with the type of radiation the Veteran was exposed to. The examiner discussed the case with an oral surgeon, who agreed that most oral cancers arise from local factors (smoking, alcohol, some genetic predisposition, and most recently HPV exposure). The oral surgeon was also not aware of any relationship between oral cancer and the type of radiation exposure that the Veteran had. The examiner also performed a Medscape and E-medicine review and could find no relationship between the type of reported exposure and oral cancer. Based on the above, the examiner concluded that he would have to resort to speculation to state that the Veteran's tongue cancer was related to radiation exposure in service. In 2012, a private medical opinion was submitted by Dr. Bash. The opinion is entitled "Independent Medical Expert (IME) Nexus Opinion" and is dated December 2, 2012. Dr. Bash opined that "to at least the 90% level of probability (considering any new signs and symptoms to the next higher medical diagnostic code/rating level for muscle, nerve and joint damage) that [the Veteran's] current tongue [squamous cell carcinoma] problems are due to his experiences with radiation that [he] had during military service." Dr. Bash based his opinion on an interview with the Veteran, his reported radiation exposure, medical literature, and the lack of any other plausible etiology. Of note, Dr. Bash stated that "no other physician has made a controverting opinion." The medical article cited by Dr. Bash is based on a study that has also been referred to by the Veteran in various correspondence. The study involved comprehensive data on the incidence of solid cancer and risk estimates for atomic bomb survivors of Hiroshima and Nagasaki. The Veteran submitted an abstract noting that there were 154 confirmed cases of oral cancer identified in the cohort between 1957 and 1976. Of those confirmed cases, 18.8 percent involved cancer of the tongue and 91.6 percent were squamous cell carcinomas. In this case, the Veteran's statements concerning his radiation exposure are credible and are supported by the findings of the Defense Threat Reduction Agency. Furthermore, the medical evidence reflects that he was diagnosed with squamous cell carcinoma of the tongue in December 2009. The only remaining question is whether the appellant's tongue cancer is related to his radiation exposure in service. Here, the record reflects conflicting opinions. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other 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, 448-49 (2000). In this case, the Board finds the most persuasive competent evidence preponderates against the claim for service connection. The Board finds the opinion rendered by the Director of Environmental Agents Service to be especially probative. The opinion was based on specific dose estimates provided by the Defense Threat Reduction Agency. As noted above, these dose estimates were based on the Veteran's statements, operational reports, service records, and standard scientific methodology. To the extent the Veteran has expressed disagreement with the dose estimate report, he has provided no competent contrary evidence offering a different dose estimate. Moreover, it is noted that the assumptions used by the Defense Threat Reduction Agency in calculating the dose estimate were designed to afford the maximum benefit of the doubt to the Veteran and to ensure the reported doses were not less than actual doses. The opinion offered by VA's Director of Environmental Agents Service was based on an Interactive Radioepidemiological Program of the National Institute for Occupational Safety and Health. In other words, the Director's opinion was based on epidemiologic modeling designed specifically to determine the likelihood that ionizing radiation was the cause of cancer in a particular case. In addition, the Director is a physician and health physicist with expertise in this area. For these reasons, the Board finds the opinion especially probative. The Board also finds some probative value in the April 2012 VA examiner's opinion. The examiner opined that he would have to resort to "mere speculation that the [Veteran's] tongue cancer was related to radiation exposure," which is arguably not the clearest phraseology. When his report is read in its entirety, however, it presents a negative opinion regarding etiology. The examiner indicated that he could not find any references to support a causal link in the common dental literature or in reviewing Medscape and E-medicine. The examiner also discussed the case with an oral surgeon, who was not aware of any relationship between oral cancer and the type of radiation exposure that the Veteran had. Dr. Bash's opinion is afforded some limited probative weight; however, the Board does not find his opinion as persuasive as the opinion by the Director of Environmental Agents Service. Although Dr. Bash interviewed the Veteran and considered his statements regarding radiation exposure, he did not perform any sort of dose estimate assessment. Dr. Bash did not reference the dose estimate assessment report prepared by the Defense Threat Reduction Agency. Also, Dr. Bash's opinion was not based on epidemiological modeling. To the extent Dr. Bash relies on a study involving a higher risk for all solid cancers in atomic bomb survivors of Hiroshima and Nagasaki, the Board points out that there is no indication that the Veteran was exposed to the same levels of ionizing radiation as the cohort in that study. Therefore, the conclusion reached has only limited probative value. Finally, Dr. Bash's statement that no other physician (had) made a controverting opinion," is factually inaccurate. For these reasons, the Board does not find Dr. Bash's opinion as persuasive as the other evidence of record. With respect to the extracts and articles submitted by the Veteran those non-specific and do not address the etiology of his squamous cell carcinoma of the tongue. The Court has indicated that treatise evidence may suffice to establish nexus in instances where, "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Wallin v. West, 11 Vet. App. 509, 514 (1998) (quoting Sacks v. West, 11 Vet. App. 314, 317 (1998)). In this case, however, the information submitted by the Veteran is generic in nature, and it fails to demonstrate a relationship between his particular tongue cancer and radiation exposure in service. To the extent Dr. Bash's opinion relies on such information, as discussed above, the Board does not find this evidence as persuasive as the evidence provided by the Defense Threat Reduction Agency and the Director of Environmental Agents Service. The only other opinion is offered by the Veteran himself. The Veteran is competent to testify to as his observations, and his in-service exposure to ionizing radiation is conceded. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). On the question as to whether his tongue cancer is related to radiation exposure, however, the specific, reasoned opinion of the Director of Environmental Agents Service is of greater probative weight than the more general assertions of the Veteran, even assuming the appellant's competence to opine on this complex medical question. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). The Board emphasizes at this point that this decision does not imply that the Veteran is not sincere in his belief that his squamous cell carcinoma is causally or etiologically related to radiation exposure in service. Furthermore his statements relating to his duties as a radiological specialist are competent and credible. However, the weight of the most probative and competent evidence reflects that the Veteran's tongue cancer did not manifest in service or for many years thereafter, and there is no relationship between his tongue cancer and the conceded in-service radiation exposure. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to service connection. Given that the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not applicable to this case. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for squamous cell carcinoma of the tongue due to ionizing radiation in service is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs