Citation Nr: 1313822	
Decision Date: 04/25/13    Archive Date: 05/03/13

DOCKET NO.  00-18 770A	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for acute myelocytic leukemia (AML), to include as due to ionizing radiation exposure and tobacco use during service, based upon substitution of the appellant as the claimant.  


REPRESENTATION

Appellant represented by:	Joseph R. Moore, Attorney at Law


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife



ATTORNEY FOR THE BOARD

L. Barstow, Counsel


INTRODUCTION

The Veteran had military service from November 1954 to September 1956.  He died in September 2011.  The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  

At the time of the Veteran's death, he had perfected an appeal as to the claim listed on the first page of this decision.  Following the Veteran's death, the appellant filed a claim seeking service connection for the Veteran's death, death pension and accrued benefits.  The law provides that, upon the death of a claimant, a person who would be eligible to receive accrued benefits due to the claimant may be substituted as the claimant for the purposes of processing the claim to completion.  See 38 U.S.C.A. § 5121A (West 2002).  In this case, the appellant's claim was accepted by the RO as a request for substitution as the claimant in the claim pending at the time of the Veteran's death and the appellant's request for substitution was granted.  As such, the claim was recertified to the Board for adjudication based upon substitution of the appellant as the claimant.  

In December 2001, the Veteran and the appellant testified at a hearing before the undersigned Acting Veterans Law Judge (AVLJ).  A transcript of the hearing has been associated with the claims file.

The Board notes that this case has been before the Board several times, and was remanded several times for further development, prior to December 2006.  In December 2006, the Board denied service connection for AML.  The Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In April 2009, the Court issued a memorandum decision vacating the December 2006 Board denial and remanding the case back to the Board for further development in accordance with the memorandum decision.

The Board remanded the case in compliance with the April 2009 memorandum decision in March 2010 and remanded it again in November 2010 and September 2011.  Following the September 2011 remand, the representative submitted a motion to vacate that remand and adjudicate the claim based on the evidence of record due to the decline of the Veteran's health.  The Board vacated the remand and issued a decision also in September 2011 denying the Veteran's claim.  However, at the time of the Board's denial, the Veteran had passed away.  By way of a February 2012 Board decision, the September 2011 denial was vacated due to the Veteran's death.  As the Veteran's surviving spouse was substituted in for the claimant, the case has now been returned to the Board.  

In December 2012, additional evidence was received in the form of an addendum medical opinion pertaining to his claim.  The appellant specifically waived her right to have the RO consider this evidence in the first instance.  38 C.F.R. § 20.1304(c) (2012).


FINDINGS OF FACT

1.  The Veteran filed his claim for service connection on May 27, 1998, prior to the June 9, 1998, deadline for application for service connection as a result of tobacco use during service.

2.  On the basis of the Veteran's lay testimony of record, the Veteran began smoking during military service and was a pack-a-day smoker until approximately 1977.

3.  The Veteran was first diagnosed with AML in April 1998.

4.  The competent and probative evidence of record fails to establish a relationship between the Veteran's AML and his exposure to ionizing radiation, tobacco use, or a combination of those two factors, during military service.


CONCLUSION OF LAW

AML was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.307, 3.309, 3.311 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's 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).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA notice 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.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The Veteran was notified in letters dated in July 2003 and March 2004 regarding the type of evidence necessary to establish his claim.  He was instructed how to establish service connection.  The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  A May 2006 letter notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Board concedes that the Veteran was not provided all of the pertinent notification at the same time; furthermore, the Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal.  However, following the July 2003, March 2004 and May 2006 letters, the claim was thereafter readjudicated in February 2011.  See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006).

Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), personnel records,  post-service medical records and also followed the development procedures set forth in 38 C.F.R. § 3.311 for radiogenic diseases in furtherance of his claim.  

The Board acknowledges that the Veteran was not afforded a VA examination.  However, pursuant to 38 C.F.R. § 3.311, medical opinions from the Director of Environmental Agents Service, written for the Under Secretary for Health, and from the Director of Compensation and Pension Service were obtained in January 2011.  Although previous opinions were obtained in June 1999 and July 2000, the January 2011 opinion utilizes an updated calculation method for preparing radiation dose estimates.  The January 2011 opinions are sufficient as they considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated.  Therefore, the Board finds that the information and evidence of record contains sufficient competent evidence to decide the claim.  38 C.F.R. § 3.159(c)(4).  In finding that no further medical opinions are necessary, the Board acknowledges that in the vacated September 2011 remand, further development consisting of obtaining an opinion regarding the Veteran's smoking history was identified.  However, as the Veteran is unfortunately deceased, the Board finds that a remand is not necessary as no smoking history from the Veteran can be obtained.  The remand also suggested that a new opinion from the Under Secretary of Health should be obtained in light of a private medical opinion suggesting that the January 2011 opinion was incorrect.  A review of the January 2011 Under Secretary of Health's opinion does not suggest that the opinion was inaccurate; therefore a remand for a new opinion is also not necessary.  

VA has no duty to inform or assist that was unmet.  The appellant has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder.  

The Veteran and appellant were also provided with a hearing related to the present claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In this case, the AVLJ explained the issue on appeal, but did not suggest the submission of any additional evidence.  This was not necessary, however, because the Veteran and the appellant fully described why they believed service connection was warranted.  Accordingly, the claimant is not shown to be prejudiced on this basis.  The appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 

II.  Analysis

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. §§ 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  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 injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  

Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (1995).  

Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  

Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways.  See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997).  First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d).  Second, service connection can 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.  Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions.  See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).  Under Combee, VA must determine whether the disability is otherwise the result of active service.  In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation.

A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity.  "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946.  38 C.F.R. § 3.309(b)(i), (ii) (2012).

The diseases presumptively service-connected for radiation-exposed veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d)(2) include leukemia (other than chronic lymphocytic leukemia).  38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d).

If a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service.  Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and includes the following:  all forms of leukemia except chronic lymphatic (lymphocytic) leukemia.  38 C.F.R. § 3.311(b).

Under the special development procedures in § 3.311(a), dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946.  38 C.F.R. § 3.311(a)(2) (2012).  In all other claims, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the veteran's exposure to radiation.  These records normally include but may not be limited to a 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) (2012).

In this case, the appellant contends that the Veteran's AML was due to his exposure to ionizing radiation during service at the Nevada Testing Site (NTS) in February 1955 during Operation TEAPOT.  Alternatively, the Veteran asserted that his smoking, either alone, or together with the effects of ionizing radiation during service, caused his AML.

Based on a review of the evidence, for the reasons set forth below, the Board concludes that service connection for AML is not warranted on direct or presumptive bases.  

Initially, with regards to the Veteran's contention that his smoking caused AML, the Board observes that the Veteran's statements regarding the details of his smoking history in an August 1998 letter and in a June 2000 VA treatment note are particularly scant.  The Veteran asserted in those statements that he began smoking during service and that he smoked following discharge from service until he quit smoking approximately 20 years ago; the Veteran quit smoking in approximately 1977 according to the September 2011 motion to vacate.  The information regarding the amount the Veteran smoked, including his pack history is not of record; though the Board notes that W.G., M.D.'s opinion, discussed below, indicates that the Veteran was a pack-a-day smoker while in the service.

The Board observes that the Veteran's friend filed an informal claim on May 27, 1998.  The Veteran filed his formal claim for service connection for AML on June 25, 1998.  The Board notes that for claims received after June 9, 1998, a disability will not be considered service-connected on the basis it resulted from disease or injury attributable to the Veteran's use of tobacco products during service.  See 38 C.F.R. § 3.300 (2012).  As the Veteran's informal claim was filed prior to June 9, 1998, and his formal claim was filed within one year of his informal claim, the Board will treat the Veteran's claim as having been filed May 27, 1998-the date of his informal claim.  See 38 C.F.R. § 3.155(a) (2012).  Accordingly, the Board finds that the Veteran's smoking is a valid theory of entitlement that must be considered in this case, as his claim was filed prior to June 9, 1998.

A review of the Veteran's STRs shows no treatment for, or diagnosis of, AML or symptoms associated with AML.  Indeed, the Veteran did not contend that his AML began in service.  His personnel records do not contain information regarding how much ionizing radiation he could have been exposed to.  

VA and private treatment records reveal that in April 1998 the Veteran began having symptomatology such as high fevers.  The Veteran was subsequently hospitalized in July 1998, at which time he was diagnosed with AML.  An April 2010 VA treatment record diagnosed the Veteran with AML, subtype M2 (AML-M2).  Unfortunately, the Veteran passed away in September 2011.  None of the Veteran's treatment records for his AML contains any opinion regarding the etiology of the AML.  Specifically, there is no opinion indicating that AML was due to ionizing radiation or smoking.  

As noted in the Board's March 2010 remand, the Veteran asserted he was exposed to ionizing radiation during the six-month period after Operation TEAPOT at the NTS and believed that it was the source of his AML.  He also asserted possible exposure from Operation REDWING, even though it was conducted at the Pacific Proving Ground, and he did not contend that he was ever assigned there for duty.

The Veteran further contended being involved in "radiation risk" activity when he was part of a special army unit working with the Air Force.  He recalled that his assignment included working as an aviation combat engineer, where he worked on Air Force Ranges throughout the Pacific Southwest.  He maintained that while he was not at any range during detonation of an atomic device, he was there before and after detonations performing "cat" (Caterpillar tractor) and grader work.  He also reported that he was in wind distance of the detonation of two nuclear operations: Operation TEAPOT, from February to June 1955, and Operation REDWING, in the spring of 1956.  The Veteran indicated that he covered trenches from Beale Air Force Base (AFB) to Norton AFB.  He reported that when equipment needed repairs he would lie on the sand and dirt and complete the repairs.  He also maintained that he worked at the Hanford Atomic Energy mission.  His military records note a three-day temporary duty assignment to Yakima, Washington.

The salient time period in the Veteran's assertions is July 1955 to September 1955.  During this period, the Veteran contended he worked in and around the NTS, performing range work.  One of his key assertions is that when his unit relocated from Beale AFB, CA, to Norton AFB, CA, in September 1955, his unit made the move via the NTS, where he worked filling in trenches dug for personnel who participated in Operation TEAPOT.

A check of the available data bases revealed no record of in-service exposure to ionizing radiation for the Veteran, which means the Veteran was not officially monitored for radiation exposure during his active service.  See, e.g., April 1999 U.S. Army Radiation Standards and Dosimetry Laboratory letter.  The Board notes that Veteran's service personnel records, including a Defense Threat Reduction Agency (DTRA) letter dated June 2000, show the Veteran served as a member of the 76th Armored Medical Battalion from February to April 1955; and was assigned to Beale AFB from April to July 1955 as a welder with the 297th Engineering Aviation Battalion (EAB).  In September 1955, the service personnel records disclose that the Veteran was transferred to Norton AFB.  The June 2000 DTRA letter specifically noted Morning Reports and unit records disclosed that the Veteran's assigned units "performed no documented activities at the NTS or in the vicinity of Nellis AFB."  

Thus, the Board finds that there is no evidence of record which specifically notes the Veteran's presence at NTS during or within the six-month period following Operation TEAPOT, or any other radiation-risk activity.  In reaching this conclusion, the Board acknowledges the Veteran's numerous statements prior to his death indicating that he had onsite participation in a radiation-risk activity.  The Veteran was competent to report his duties in service as well as his traveling from Beale AFB to Norton AFB.  However, the Board finds that the pertinent service records outweigh the Veteran's assertions that he met the criteria to be a "radiation-exposed veteran" for purposes of 38 C.F.R. § 3.309(d)(3).  

In this case, with regards to the Veteran's assertion that his route from Beale AFB to Norton AFB took him through the NTS, a November 2000 statement received from the Veteran's family indicates that the Veteran told his family about that trip when he was in the hospital with a 104 degree fever.  The statement specifically reports that the Veteran "may have mixed a few things up in his delirious state."  The statement continues to say that the Veteran was mixed up as to whether he was at the Hanford Atomic Energy mission before the NTS or after the NTS.  Due to the family's own report that the Veteran was "mixed up" in his reports regarding some of his exposure to ionizing radiation, the Board finds that such assertions have less probative value than the service findings that the Veteran did not participate in radiation-risk activities.  

Therefore, the Board finds that the objective evidence of record at the time of the Veteran's service, in addition to the official findings of the DTRA based on the pertinent service records, outweighs the Veteran's reported history of participation in radiation-risk activities.  Such records are more reliable, in the Board's view, than the Veteran's unsupported recollection of events during a time when he was reportedly delirious over four decades past.  See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]; see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran].  In this case, the service records fail to show any participation in radiation-risk activities.  Therefore, the Board concludes that the evidence outweighs a finding that the Veteran participated in radiation-risk activities.

In finding that the evidence does not support the Veteran's assertions that he participated in radiation-risk activities, the Board acknowledges the Court's second footnote in the April 2009 memorandum decision pointing out the potential inconsistency of 38 C.F.R. § 3.311(a)(4)(I).  The Court was not clear as to how VA could assume that the Veteran was exposed to radiation for purposes of direct service connection because his records could not rule out his presence at the NTS, yet, at the same time, find the Veteran's testimony of his presence at the NTS not credible for presumptive service connection based on the absence of corroborating records.  As discussed in detail below, VA obtained radiation dose estimates based on the Veteran's assertions of radiation exposure, despite the evidence failing to show exposure for the reasons set for above.

In this case, VA conceded ionizing radiation exposure solely for the purposes of development under 38 C.F.R. § 3.311 to help establish service connection on a direct basis.  There is no indication in the claims file that the concession of ionizing radiation exposure was meant to define the Veteran as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) for the purpose of presumptive service connection, especially as the pertinent service records fail to confirm the Veteran's assertions of in-service exposure.  

Accordingly, the Board cannot grant service connection on a presumptive basis in this case, as there is no confirmed onsite participation in a radiation-risk activity which would allow the Veteran to be considered a "radiation-exposed veteran" for purposes of 38 C.F.R. § 3.309(d)(3).  Therefore, the Board must deny service connection on a presumptive basis in this case.  See 38 C.F.R. §§ 3.307, 3.309(d).

However, as the Veteran's AML is a radiogenic disease, the VA has conceded radiation exposure solely for the purposes of development and adjudication under 38 C.F.R. § 3.311.  See 38 C.F.R. § 3.311(a)(4)(i).  Additionally, the Board finds that the full development procedures required by 38 C.F.R. § 3.311 have been accomplished in this case, including a dose estimate preparation and review by the Under Secretary.

In September 2003, the Veteran submitted a letter dated October 1998 from his VA doctor which stated that the Veteran was diagnosed with AML in April 1998.  He noted that the Veteran was exposed to ionizing radiation during military service, per his statement, and that "[s]ince ionizing radiation can cause AML, it is possible that the development of AML . . . may be related to prior exposure to radiation."

The VA physician submitted an additional April 2005 letter, which stated that radiation exposure was a "well-documented" cause of AML with a "strong association" between radiation exposure and the development of AML; he cited a medical literature reference for these assertions.  He then stated that he "believe[d] that radiation exposure should be considered to be a causative factor in the development of" the Veteran's AML.  (Emphasis added).

In this case, the DTRA initially provided a dose assessment for the Veteran's estimated ionizing radiation exposure during service in its June 2000 letter.  However, updated dose estimates were obtained from DTRA in July 2010, which began using a different calculation method in March 2007.  Such recalculation methods using the DTRA's new Nuclear Test Personnel Review (NTPR) program result in "much higher [dose assessments] than previous radiation dose assessments," according to the July 2010 letter.  Accordingly, the Board will use these new dose estimates, as they provide for the maximum benefit of the doubt to the Veteran.

The July 2010 DTRA letter again confirmed that there was no evidence to demonstrate that the Veteran was a confirmed participant of Operation TEAPOT.  However, they estimated, using the "worst-case parameters and assumptions," not all of which the Veteran might have encountered.  This was intended to adequately encompass any activities performed by the Veteran.  It was indicated that the Veteran did not have more than the following radiation dose estimates:

External gamma dose: 			16 rem

External neutron dose:		           0.5 rem

Internal committed dose to the blood
forming organs (alpha):			 0.3 rem

Internal committed dose to the blood
forming organs (beta plus gamma): 	    3 rem

Using these revised dose estimates, the Under Secretary submitted a January 2011 opinion.  That opinion acknowledged that the Veteran was diagnosed with AML in 1998, and noted the above dose estimates for the Veteran's ionizing radiation exposure. Based on those dose estimates, the Under Secretary performed a National Institute for Occupational Safety and Health (NIOSH) Interactive Radioepidemiological Program (IREP) model study, which assumed that the Veteran's radiation exposure was a single acute dosage of ionizing radiation in the earliest year of exposure, 1955, which tended to increase the probability of causation as calculated by IREP.  The probability of causation for the Veteran's AML was determined by the NIOSH-IREP model to be 11.53 percent.  The Under Secretary also stated she had reviewed the April 2005 letter from the VA physician and stated that the opinion "was speculative in nature and that he may have not made this statement had he known what the Veteran's actual radiation doses were or if he had been able to calculate in IREP himself."  Given the percentage of probability of the NIOSH-IREP obtained, the Under Secretary opined that it was "not likely" that the Veteran's AML "can be attributed to radiation exposure while in military service."

The Under Secretary's opinion was sent to the Director of Compensation and Pension Services (Director), who additionally issued his own opinion in this case.  In that January 2011 opinion, the Director noted the Under Secretary's opinion, including the Under Secretary's review of the April 2005 VA physician's letter, and the DTRA dosage estimate.  The Director opined that, after review of the Under Secretary's opinion and all of the evidence in its entirety, "there [was] no reasonable possibility that the Veteran's AML resulted from radiation exposure in service."

The Veteran also submitted a June 2011 letter from a private physician, Dr. W.G., who noted the Veteran's dates of service and the Veteran's assertions of ionizing radiation exposure at the NTS, as set forth above.  He additionally provided some background history of the NTS, including that after testing ended in 1992, the Department of Energy concluded that the NTS was "one of the most radioactively contaminated sites in the country."  He stated that during service, the Veteran was exposed to ionizing radiation, and specifically noted the DTRA July 2010 dose estimates as reported above.  Dr. W.G. reported that the Veteran was diagnosed with AML in April 1998, at the age of 63, and that exposure to ionizing radiation was a "known cause of AML as well as other malignancies"; he cited some medical literature as a reference.  He added he performed two NIOSH-IREP models using the dosage estimates and that such yielded two different results, one for AML and one for a generic "leukemia" model.  He asserted that the model specifically for the Veteran's diagnosed AML yielded a 32.13 percent probability of causation where the less specific generic leukemia model yielded a probability of causation of 11.53 percent.  Dr. W.G. asserted that the Under Secretary made an error in the NIOSH-IREP model calculation when reporting the 11.53 percent value rather than the more specific 32.13 percent value for the Veteran's specific AML diagnosis, and noted that 32.13 percent should have been reported by the Under Secretary because that specific model was available rather than a less specific model.

Moreover, Dr. W.G. stated that VA's opinion failed to take into account the interplay of the Veteran's medical history, to specifically include his smoking history.  He stated that the Veteran was a one-pack-per-day cigarette smoker at the age of 19 when he was in the Army and that such was important because smoking is associated with the M2 subtype of AML that the Veteran developed.  He noted that exposing a person with a risk factor for a disease (in this case, smoking) to another risk factor (ionizing radiation) serves to increase the risk of disease development; in this case, Dr. W.G. stated that such risk of disease development was

likely multiplicative rather than additive.  In other words, the two factors worked synergistically in causing [the Veteran's] AML. . . . The assertion by the VA that the calculated probability of causation of [the Veteran's] radiation exposure was too low to cause his AML misses the point of the synergistic relationship between the two risk factors.  If they had an algorithm that calculated the total risk in a person with two or more simultaneous risky exposures, the conclusion regarding causality would have been different.

Dr. W.G. concluded the "evidence in this case is that [the Veteran's] exposure to ionizing radiation during military service contributed to his later development of AML and more likely than not caused that malignancy."

An addendum opinion by Dr. W.G. dated in December 2012 was also submitted.  Dr. W.G. reiterated his earlier opinion regarding the calculation of the Veteran's radiation exposure.  The Veteran's exposure to radiation was an important etiologic factor in the development of AML.  Dr. W.G. noted that the Veteran did not receive all of his exposure in one dose, but he was only at the NTS for a two month period of a 62 plus year lifespan, so taking the long view of events over his lifetime, the two month window was like a point in time and the calculation was valid.  It was his opinion that the Veteran's risk of developing AML from cigarette smoking alone was 15.75/100,000.  Although that risk was significant, it was nowhere near the risk conferred on him by exposure to ionizing radiation.  As noted in his earlier opinion, smoking and ionizing radiation raised the risk of developing lung cancer in a multiplicative rather than an additive fashion.  However, data to prove that type of relationship between smoking and radiation exposure in the development of AML do not exist because the study had simply not been done.  (Emphasis added.)  Those two factors, ionizing and radiation, though both caused chromosomal damage and it was exactly that type of chromosomal damage that had been shown to be present in AML patients.  When the two predisposing factors are present simultaneously, the likelihood of the untoward result was higher than it would be if only one of the factors was present at a time, i.e., the effect is multiplicative.  

To illustrate his point, Dr. W.G. used an example where the likelihood of a house burning down was increased when a child was playing with matches in a room where the carpet also happened to be soaked with gasoline.  Either of those factors alone could result in the house burning, but the likelihood was much higher when the two factors were present simultaneously.  That type of interaction had been shown in the interplay of smoking and ionizing radiation on the development of lung cancer, and that gave reason to believe the same type of interplay was operative in the development of AML.  So instead of the risk of AML from the two factors, ionizing radiation and smoking, being 142.45/100,000 plus 15.75/100,000, it was likely much higher than that, and, in any case, many-many-fold higher than the risk in the general population.  For that reason, and because he had no family history of leukemia, Dr. W.G. believed that the combination of smoking and exposure to ionizing radiation, more likely than not led to the development of AML in the Veteran.  There is no indication in this opinion that Dr. W.G. changed his earlier opinion that there was 32.13 percent probability of causation in the Veteran's development of AML.  

The Board notes that several lay statements from the Veteran, his spouse, his representative and several friends and siblings, particularly the Veteran's older brother, are also of record.  None of these individuals is shown by the record to be medical professionals.

Additionally, there are several internet articles of record which note a relationship between the development of AML and exposure to ionizing radiation.  However, these are articles are not specific to the Veteran's case and do not take into account the dose estimates prepared for the Veteran.  

The Board notes that for solely purposes of development and adjudication in this matter under 38 C.F.R. § 3.311, the VA has conceded exposure to ionizing radiation and tobacco use during service.  Thus, the issue in this case is whether there is any competent and probative evidence demonstrating a nexus between the currently diagnosed AML and service.  The Board finds that such is not demonstrated in the evidence of record and therefore service connection for AML must be denied for the reasons set forth below.

The Board notes that all of the lay statements from the Veteran, his spouse, friends, siblings and representatives are not competent evidence regarding causation as there is nothing in the record demonstrating they have the medical expertise which allows them to competently opine as to a medical nexus in this case.  See Jandreau at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis); Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue); see also Layno v. Brown, 6 Vet. App. 465, 471 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness' personal knowledge, in this case the presence of varicose veins); cf. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis).  Thus, insofar as those lay statements opine as to a relationship between the Veteran's AML and his military service, the Board gives those statements no probative weight given their lack of competency.

Additionally, the Board gives no probative value to the internet articles in this case as those documents do not give any opinion as to the specific relationship between the Veteran's ionizing radiation exposure in service and his AML.  

As to the statements from the VA physician in October 1998 and April 2005, the Board notes that those opinions are ill-informed as to the specific dose estimates relevant to the Veteran's ionizing radiation exposure during service, as re-calculated by DTRA in July 2010.  In fact, those statements do not include any actual dose estimates or measurements specific to the Veteran's ionizing radiation exposure in service, including those dose assessments calculated by DTRA prior to March 2007, as noted in the June 2000 DTRA letter.

Moreover, the Board notes that the October 1998 opinion from the VA doctor states that it is "possible" the Veteran's AML is related to ionizing radiation in service. Likewise, his April 2005 letter stated that radiation exposure "should be considered a causative factor" in the development of the Veteran's AML.  Such language that it is "possible" or that it "should be considered" is speculative in nature, particularly in light of the lack of any actual dose measurements.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (doctor's letter stating probability in terms of "may or may not" was speculative).  Therefore, the Board finds that no probative value should be given to the opinions of the VA physician regarding the etiology of the Veteran's AML because they are speculative in nature.  As such, those opinions cannot support a finding of service connection on a direct basis.  

The Board has also weighed the probative value of Dr. W.G.'s June 2011 opinion and the December 2012 addendum against the January 2011 opinion from the Under Secretary.  Even if the Board concedes that the Under Secretary did not use the proper IREP calculation of probability of causation (the Under Secretary used a generic model rather than the specific AML model), the Board notes that such a specific AML model only yielded a 32.13 percent probability of causation as noted by Dr. W.G. in his June 2011 opinion.  Consequently, the Board observes that such a percentage of causation, even when taking the more generous probability for the specific AML model, does not rise to the level of at least 50 percent probability of causation, and therefore cannot be considered to put the probability of causation by ionizing radiation exposure in at least equipoise.

Additionally, as noted above, Dr. W.G. stated that it was more likely than not that the Veteran's ionizing radiation exposure caused his AML.  This opinion is inconsistent with the NIOSH-IREP results that he reported (32.13 percent).  Dr. W.G. does not explain the clear discrepancy between his more likely than not opinion, which contemplates a 50 percent or greater probability, and the 32.13 percent probability of causation that he reported.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence).

Although December 2012 addendum indicates a higher probability of causation as that opinion more thoroughly discussed the multiplicative relationship between smoking and ionizing radiation exposure, that opinion still does not support a finding of service connection.  In opining as to the Veteran's increased risk of developing AML due to the combination of smoking and ionizing radiation, Dr. W.G. specifically reported that evidence to prove that type of relationship between smoking and radiation exposure in the development of AML does not exist.  (Emphasis added.)  Rather, as discussed in his previous opinion, Dr. W.G. based his opinion on studies addressing the synergistic effects of smoking and radiation exposure in cases involving lung cancer.  Additionally, this opinion did not change the 32.13 percent probability of causation that he earlier reported.  Without specific data to support the opinion that the Veteran's AML more likely than not developed as a result of the combination of smoking and ionizing radiation exposure, the Board finds that it lacks probative value.  

Therefore, the Board finds that the opinion of the Under Secretary is of greater probative value in this case, particularly when weighed against the inadequately explained rationale provided for by Dr. W.G. for his opinion.  See Guerrieri v. Brown, 4 Vet. App. 467 (1993) (the probative value of medical opinion evidence is based on the medical expert's personal examination of the Veteran, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his or her opinion affects the probative weight or credibility of the evidence); see also Madden, supra.

As to the relationship between the Veteran's AML and tobacco use during service, the Board notes that Dr. W.G.'s opinion refers to some medical literature which supports a possibility that the Veteran's subtype (M2) of AML has an association with a smoking history.  However, Dr. W.G. did not discuss the specific relationship between the Veteran's smoking history alone and his AML.  Although the December 2012 opinion discussed in detail the multiplicative relationship between smoking and ionizing radiation and the development of AML, as already discussed above, such opinion was not premised on any specific study as to such a causal relationship.  No medical professional has provided any opinion indicating that the Veteran's smoking alone caused his AML, nor did the Veteran prior to his death contend such relationship.  As such, the Board concludes that the totality of the evidence in this case does not warrant a finding of such a relationship.

Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran's AML is related to any ionizing radiation exposure, tobacco use, or any combination of those factors, during military service.  See 38 C.F.R. §§ 3.303, 3.311.

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).





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ORDER

Entitlement to service connection for AML, to include as due to ionizing radiation exposure and tobacco use during service, based upon substitution of the appellant as the claimant is denied.



____________________________________________
JAMES R. SIEGEL
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs