Citation Nr: 1315463 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 11-18 900 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for prostate cancer residuals. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from June 1953 to September 1956. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. 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 The weight of the evidence is against a finding that the Veteran's prostate cancer either began during or was otherwise caused by his military service, to include as a result of his radiation exposure therein. CONCLUSION OF LAW Criteria for service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may also be granted for a chronic disease shown in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection. Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The condition at issue in this case, prostate cancer, is a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the Veteran's prostate cancer did not become chronic in service, was not continuous from service, and did not manifest to 10 percent within a year. As will be discussed, the Veteran's prostate cancer was not diagnosed until 2007, more than 50 years after he separated from service. As such, service connection is not warranted under 38 C.F.R. § 3.303(b). As noted, the Veteran is seeking service connection for his currently diagnosed prostate cancer, or prostate cancer residuals, which he believes are the result of exposure to radiation while in service, as a result of his participation in Operation CASTLE. In this regard, the Veteran has already been service connected for several cancers (skin and bone), which were connected to his in-service radiation exposure. In his July 2010 notice of disagreement, the Veteran argued that he had been service connected for other cancers which had long latencies, and he felt that the fact that the latency of his prostate cancer was similar to the other, now service connected cancers, supported his claim for service connection. The Board understands this argument, and from a lay perspective it may appear to have some merit. However, cancers are not generic, and different types of cancers have different causes, different latencies, and some are more likely than others to have been caused by radiation exposure. See January 2013 VHA medical opinion. What this means is that service connection is not established by showing only that the Veteran has cancer and that he was exposed to radiation. Moreover, while the Veteran believes that his prostate cancer was the result of radiation exposure during service, he does not have the medical training and expertise to provide a complex medical opinion as to the etiology of a particular cancer. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In Jandreau, the Federal Circuit specifically determined that a lay person is not considered competent to testify when the issue was medically complex, as with cancer. Rather, medical evidence analyzing the amount of exposure, the type of cancer, and the passage of time between the exposure and the development of the cancer is required. As will be discussed, this medical evidence was obtained in adjudicating this claim. Service connection based upon exposure to radiation can be awarded three ways: 1) 38 C.F.R. § 3.309(d), 2) 38 C.F.R. § 3.311, or 3) on the basis of direct, or in certain cases presumptive, service connection. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). Under 38 C.F.R. § 3.309(d)(3), a "radiation-exposed veteran" is defined as a veteran who, while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity. The definition of "radiation-risk activity" includes on site participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d)(3)(i), (ii). The Veteran's participation in Operation CASTLE is considered to be participation in a radiation-risk activity. If, as here, a veteran is found to meet the definition of a radiation-exposed veteran, 38 C.F.R. § 3.309(d)(2) provides an exclusive list of diseases which are considered presumptively caused by radiation exposure. However, prostate cancer is not one of the diseases which are presumptively connected to radiation exposure, and therefore the first means of service connection for a radiation-risk activity exposed veteran is not available. 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation, calling for the development of a dose assessment where 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 § 3.307 or § 3.309, and where 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 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). In all other claims involving allegations of radiation exposure, a request will be made for any available records concerning a veteran's exposure to radiation. These records normally include, but are 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 a veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for the preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). Pursuant to 38 C.F.R. § 3.311, a "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes prostate cancer. 38 C.F.R. § 3.311(b)(2)(i)-(xxiv). Third, and notwithstanding the above, the United States Court of Appeals for the Federal Circuit has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee, 34 F.3d at 1043-1044. Thus, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether his disability is otherwise the result of active service. In other words, the fact that the Veteran may not meet the requirements of a presumptive regulation would not in and of itself preclude him from establishing service connection as he may, in the alternative, establish service connection by way of proof of actual direct causation. As an initial point, the evidence in this case indisputably establishes that the Veteran participated in Operation CASTLE, a radiation-risk activity, as contemplated by 38 C.F.R. § 3.309, and he is therefore found to have been exposed to radiation while in service. The Board also notes that the Veteran has specifically detailed how he was exposed to radiation to assist with the creation of his dose estimate. However, while it is presumed that the Veteran had radiation exposure, prostate cancer is not a disease which has been presumptively related to radiation exposure. See 38 C.F.R. § 3.309(d)(2). When, as here, a veteran does not have a disease that is presumptively linked to radiation exposure, 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation, calling for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where, as here, it was not manifest to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. In this case, VA has obtained several does estimates for the Veteran over the years in conjunction with his various claims; and a new dose estimate was prepared in conjunction with this claim for prostate cancer. In preparing the most recent dose estimate, the Veteran completed an extensive questionnaire detailing the specific ways he was exposed during service. As noted, the Veteran participated in Operation CASTLE, which was a six detonation atmospheric nuclear test series. During this time, he was assigned to the USS Granville S. Hall and performed decontamination work on the ship following four of the six detonations. This information was accurately recorded and forwarded to the Defense Threat Reduction Agency (DTRA) to enable a radiation exposure estimate to be made. The DTRA estimated that the Veteran's exposure amounted to the following: External gamma dose: 18 rem External neutron dose: 0.5 rem Internal committed dose to the prostate (alpha): 4.5 rem Internal committed dose to the prostate (beta + gamma): 2 rem The accuracy of this does estimate has not been challenged. Moreover, the Veteran specifically endorsed the information used to construct the dose estimate, and the additional information did result in a higher dose estimate for the Veteran than had previously been established in conjunction with earlier claims. In an April 2010 memorandum, the Director of Radiation and Physical Exposures addressed the Veteran's claim. He noted that the Veteran had been born in 1935 and diagnosed with adenocarcinoma of the prostate in 2007. The Director explained that the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) was used to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's prostate cancer. The program calculated that the probability of the Veteran's prostate cancer being caused by a radiation dosage he was estimated to have received was 27.36 percent. That is, well less than a 50 percent likelihood. Based on this finding, the Director opined that it was unlikely that the Veteran's prostate cancer was the result of his radiation exposure in service. The Veteran's case was forwarded, pursuant to the regulations, to the Under Secretary for Benefits for consideration as to whether sound scientific and medical evidence supported the conclusion it was at least as likely as not that the Veteran's prostate cancer resulted from his exposure to radiation in service. 38 C.F.R. § 3.311(c). Based on the opinion by the Director of Radiation and Physical Exposures, the Under Secretary for Benefits found it less likely than not that the Veteran's prostate cancer resulted from his in-service radiation exposure. In his July 2010 notice of disagreement, the Veteran argued that he continued to believe that his prostate cancer was secondary to in-service exposures, asserting that while figures spoke to averages, it did not address his specific circumstances. The Veteran's representative then argued in an October 2012 statement that because his dose levels had continued to change over time, the Veteran should be afforded the benefit of the doubt. The Board acknowledges that the Veteran's dose estimates have increased over the years, as increased information has become available about the Veteran's particular activities and the added radiation exposure they might have suscepted him to. However, it is also noted that the most recent does estimate was made with a full knowledge of the Veteran's exposure. In fact, once the Veteran submitted his radiation exposure questionnaire, his information was transcribed and sent back to him along with other information about the ship he was stationed on to ensure accuracy. In January 2010, the Veteran signed a form indicating that he agreed with the scenario included the best and most current representations of the details of his participation, that the scenario contained reasonable conditions, estimates and assumptions to be used in constructing his dose estimates, and he stated that he had no additional evidence to provide. As such, it is felt that the current dose estimate is as accurate as it can be based on available methodologies. See 38 C.F.R. § 3.311(a)(2)(iii). Given the concerns raised by the Veteran and his representative, the Board obtained an expert medical opinion from an oncologist to address the etiology of the Veteran's prostate cancer. In January 2013, an opinion was received. The oncologist took note of the Veteran's time in service at age 19, his participation in Operation CASTLE in 1954, his work in decontamination following four of the detonations, the most recent dose estimates, and the diagnosis in February 2007 of prostate adenocarcinoma. The oncologist noted that the NIOSH program calculated a 99 percentile value for the probability of causation of 27.36 percent for the Veteran's prostate cancer. The oncologist also explained that the latency period between the Veteran's radiation exposure and his development of prostate cancer was approximately 53 years, which the oncologist suggested was a long interval and did not favor the possibility of the prostate cancer being related to ionizing radiation, but made it more likely to be due to the average incidence rate of prostate cancer in the general population which is 146/100,000 in white men. The oncologist also noted that the lifetime risk of developing prostate cancer in men between 50-70 years of age was almost 8.5 percent. The oncologist also pointed out that additional data from the Center for Environmental Health Studies and the National Research Council showed that the prostate is relatively insensitive to ionizing radiation, noting that studies had not reported evidence of increased rates of prostate cancer in atomic bomb survivors. The National Research Council's BEIR V Committee stated that "the sensitivity of the prostate to the induction of cancer by irradiation appears to be comparatively low." The American Cancer Society found in one study, comparing approximately 1,000 veterans who had received the highest doses of radiation with veterans receiving minimal exposure, that those with high exposure faced an elevated risk of dying from some blood related cancers such as leukemias or lymphomas, but not a higher risk from prostate cancer. The oncologist allowed that while radiation affects people in different ways, it was generally believed that humans exposed to approximately 500 rem of radiation all at once would likely die without medical treatment, a single dose of 100 rem might cause a person to experience nausea or skin reddening, and a single dose of 25 rem might cause sterility. However, if the doses were spread out over time instead of being delivered at once, the effects tended to be less severe. In this case, the oncologist noted that the Veteran had been exposed to an external gamma dose of 18 rem and an internal committed alpha dose to the prostate of 4.5 rems and internal committed beta + gamma dose to the prostate of 2 rem which was below the standards known to be associated with ionizing radiation and cancer. Based on these factors and findings (many of which were specific to the facts of the Veteran's case), the oncologist opined that it was less likely than not that the Veteran's adenocarcinoma of the prostate was attributable to his radiation exposure during his military service. This opinion was rendered by a medical expert, it was made with a full understanding of the Veteran's radiation exposure, it was supported by peer reviewed medical evidence, and it was underscored by a complete rationale. This opinion is therefore found to be highly probative and entitled to great weight. While the Veteran believes that his prostate cancer was caused by in-service radiation exposure, he lacks the medical training and expertise to provide such a complex medical opinion, and he has not submitted any medical evidence that would support his contention. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As noted even when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, his claim must nevertheless be reviewed to determine whether service connection can be established on a another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). However, here there is simply no evidence or suggestion that the Veteran's prostate cancer began during service. Rather the condition was first diagnosed decades after service, and the highly probative medical opinions that have been rendered weigh against such a conclusion. Given that the weight of evidence is against the Veteran's claim, service connection is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in August 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Private treatment records have been obtained, as have service treatment records, and the Veteran did not report receiving any VA treatment for his prostate cancer. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. VA also obtained a dose estimate based on the Veteran's own reported radiation exposure, and submitted it to the Under Secretary of Benefits as required by regulation. Finally, a medical opinion was also obtained and associated with the claims file. The opinion addressed the Board's questions directly and the examiner provided a complete rationale for his conclusions, basing it on his review of the claims file, his professional training, and the medical literature on the subject. The Veteran was provided notice that such an opinion was being sought, and was then provided with a copy of the opinion and given 60 days to respond to the opinion and/or to submit evidence refuting the doctor's opinion. To this end, the Veteran's representative provided a statement in April 2013, but no additional medical evidence was submitted. While the Veteran's representative stated in April 2013 that the opinion was "speculative" no basis was provided for such an allegation, and upon a review of the medical opinion, the Board finds the opinion to be well-supported by clinical studies, and based on an accurate knowledge of the Veteran's radiation exposure and his development of prostate cancer many years later. Thus, the Board finds this opinion to be fully adequate. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for prostate cancer is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs