Citation Nr: 1317847 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 08-29 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for anaplastic oligodendroglioma (claimed as brain cancer), including as due to in-service exposure to ionizing radiation. REPRESENTATION Appellant represented by: Robert C. Anderson, Esquire ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty with the Army from May 1973 to May 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the claim. Jurisdiction of the case has since been transferred to the RO in Detroit, Michigan. The Board notes that the Veteran's initial claim was for service connection for anaplastic oligodendroglioma (claimed as brain cancer). However, the Veteran has continually claimed that his brain cancer is the result of in-service exposure to radiation. The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In compliance with the Court's holding in Clemons, the Board has recharacterized the claim as entitlement to service connection for anaplastic oligodendroglioma (claimed as brain cancer), including as due to in-service exposure to ionizing radiation, as styled on the title page. In April 2010, the Board remanded the case to the RO for additional evidentiary development. As discussed in more detail below, the Board finds there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The RO continued the denial of the claim as reflected in the March 2012 supplemental statement of the case and returned this matter to the Board for further appellate consideration. FINDINGS OF FACT 1. The objective evidence of record does not reflect that the Veteran was exposed to ionizing radiation in service. 2. The Veteran's anaplastic oligodendroglioma (claimed as brain cancer) was first diagnosed many years after service and is not etiologically related to exposure to ionizing radiation or other disease or injury during active duty service. CONCLUSION OF LAW Anaplastic oligodendroglioma (claimed as brain cancer) 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. §§ 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Compliance with Prior Board Remand The Board observes that this case was previously remanded in April 2010. The purpose of the remand was to refer the case to the Under Secretary of Benefits to obtain a opinion as to whether the sound medical evidence supports a finding that the Veteran's anaplastic oligodendroglioma (claimed as brain cancer) is a result of exposure to radiation during service. The record documents that in November 2011, a request for a medical opinion was sent to the Under Secretary for Health. A responsive medical opinion from Dr. P.C., Director of the Environmental Health Program, was obtained in December 2011. In December 2011, the Director of Compensation Services provided an opinion as to the Veteran's alleged exposure to radiation during service and etiology of his anaplastic oligodendroglioma (claimed as brain cancer). These opinions are adequate. See 38 C.F.R. § 3.159(c)(4). It appears there was substantial compliance with the prior remand order and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. VA's Duties to Notify and Assist The VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Appropriate notice was provided in a May 2006 letter and the claim was subsequently readjudicated, most recently in March 2012. Mayfield, 444 F.3d at 1333. As for the duty to assist, the Veteran's service treatment records (STRs), VA medical treatment records, and private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not claimed to be in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). The Veteran has not identified any additional relevant medical records that have not been obtained and associated with his file. An October 2006 Personnel Information Exchange System (PIES) response to a request for records reflects that a DD Form 1141 (Record of Occupational Exposure to Ionizing Radiation) was not found for the Veteran. An October 2007 memorandum from the U.S. Army Center for Health Promotion and Prevention Medicine reflects that it found no record of the Veteran being occupationally exposed to ionizing radiation while employed by the Army. December 2010 correspondence from the Defense Threat Reduction Agency reflects that the Agency only has information regarding radiation exposure histories of individuals who participated in US atmospheric nuclear tests (1945 to 1962) and the occupation of Hiroshima and Nagasaki, Japan, following World War II. As the Veteran claims exposure to radiation while serving as a Hawk radar repairman, the Agency recommended that the RO contact the Army Proponency Office for Preventive Medicine. However, this development was previously accomplished in October 2007. In December 2011, pursuant to 38 C.F.R. § 3.311(c), a medical opinion from Dr. P.C., Director of the Environmental Health Program, was obtained. See also 38 C.F.R. § 3.159(c)(4). The opinion reflects that the Army does not have any record of the Veteran being occupationally exposed to ionizing radiation and as there are no records of the Veteran being enrolled in a dosimetry monitoring program it can be considered evidence that he was not expected to receive a significant exposure to ionizing radiation while performing his duties. Additionally, there is no ionizing radiation exposure associated with Hawk missile systems because missile systems such as the Hawk use radar that consists of microwave or non-ionizing radiation. A study indicates that there is no increased risk of brain cancer by those who been exposed to military radar systems. Therefore, the doctor opined that it is unlikely that the Veteran's anaplastic oligodendroglioma (claimed as brain cancer) can be attributed to ionizing radiation and /or non-ionizing radiation exposure while in military service. In addition, in December 2011, the Director of Compensation Services stated that based on a review of the evidence, there is no reasonable possibility that the Veteran's anaplastic oligodendroglioma (claimed as brain cancer) can be attributed to exposure to ionizing and/or non-ionizing radiation during service. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. III. Service Connection The Veteran contends he has anaplastic oligodendroglioma (claimed as brain cancer) that is related to his military service, specifically his exposure to radiation during service. See, e.g., Notice of Disagreement, April 2008. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition is present, such as anaplastic oligodendroglioma, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the nexus between in-service radiation exposure and subsequent anaplastic oligodendroglioma (claimed as brain cancer), falls 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). Therefore, medical evidence will be required to establish a medical diagnosis of the Veteran's anaplastic oligodendroglioma (claimed as brain cancer) and to address the question of whether his in-service radiation exposure caused his brain cancer. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although 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, 128 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). Radiation Exposure Service connection for a disability which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd, 120 F.3d 1239 (Fed. Cir. 1997). First, there are specific diseases which may be presumptively service-connected if manifest in a radiation-exposed veteran. A "radiation-exposed veteran" is defined 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. 38 C.F.R. § 3.309(d)(3). A "radiation-risk activity" is defined as onsite participation in a test involving the atmospheric detonation of a nuclear device, the occupation of Hiroshima or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946, 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, or the Veteran's presence at certain specified additional locations. Id. The second avenue of recovery is found under 38 C.F.R. § 3.311(b)(2). This provision provides that certain listed "radiogenic" diseases found 5 years or more after service in an ionizing-radiation-exposed veteran may be service connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest in the period specified, the claim will be referred to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the VA Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the VA Under Secretary of Health. 38 C.F.R. § 3.311(b),(c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). Pursuant to 38 C.F.R. § 3.311(b)(2), radiogenic diseases include tumors of the brain and brain cancer. A disease is also considered a radiogenic disease where competent scientific or medical evidence that the claimed condition is a radiogenic disease is received. See 38 C.F.R. § 3.311(b)(4). Finally, there is a third avenue of recovery in a case involving radiation as the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 4, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran contends that he is entitled to service connection for anaplastic oligodendroglioma (claimed as brain cancer) due to exposure to ionizing and non-ionizing radiation. He contends that he was exposed to radiation based on his two years of maintaining the Hawk missile system while serving in the Army. For the reasons that follow, the Board concludes that service connection is not warranted. Brain cancers such as anaplastic oligodendroglioma are diseases which are presumptively service-connected under 38 C.F.R. § 3.309(d). However, the disease can only be presumptively service connected if the competent evidence of record reflects that the Veteran was exposed to ionizing radiation as a result of participation in an activity listed in 38 C.F.R. § 3.309. A radiation exposed veteran is one who has participated in a radiation-risk activity. 38 C.F.R. § 3.309(d)(3). Maintaining a missile system is not listed as a radiation-risk activity. Therefore, the radiation presumptions under 38 C.F.R. § 3.309 do not apply to the Veteran's claim. Tumors of the brain and brain cancer, such as anaplastic oligodendroglioma are also listed as radiogenic diseases in 38 C.F.R. § 3.311. A January 2006 private treatment record reflects that the Veteran's brain tumor, which was removed in December 2005, was oligodendroglioma. Additional private medical records from May 2006 and October 2006 document that the Veteran has a grade III anaplastic oligodendroglioma, which is a type of brain cancer, and has completed a full course of radiation treatment. 38 C.F.R. § 3.311 also requires that the Veteran was exposed to ionizing radiation. Here, as noted above, the Veteran has asserted he was exposed to ionizing and non-ionizing radiation as a result of maintaining the Hawk missile system for two years during service. The evidence reflects that that Veteran's military occupational specialty (MOS) was an improved Hawk radar repairman. However, there is no competent evidence of record that the Veteran was exposed to ionizing radiation. See 38 C.F.R. § 3.311. The Veteran may sincerely believe that he was exposed to radiation; however, he has not been shown to be competent to state such. An October 2006 PIES response to a request for records reflects that there is no DD Form 1141 (Record of Occupational Exposure to Ionizing Radiation) for the Veteran. The claims file includes a December 2011 memorandum from the Director of Compensation Service. It reflects that the U.S. Army Center for Health Promotion and Prevention Medicine, the Defense Threat Reduction Agency, and the Director of the Environmental Health Program all indicated there was no evidence that the Veteran was exposed to ionizing radiation while in-service. The memorandum further reflects that the Army conducts radiation exposure evaluations on "individuals who, in the performance of their duties, would reasonably be expected to be exposed to 10 percent of the allowable occupational limits for radiation. The fact that there are no records of [the Veteran] being enrolled in a monitoring program may be considered evidence that he was not expect to receive a significant exposure to ionizing radiation while performing his duties." Additionally, the Director cited to the Environmental Health Program's finding that "[t]here is no ionizing radiation exposure associated with Hawk missile systems. This is the reason the veteran was not enrolled in an occupational radiation monitoring program by the Army." With regard to the Veteran's claim that non-ionizing radiation caused his anaplastic oligodendroglioma (claimed as brain cancer), the evidence showed that while the Hawk missile system uses non-ionizing radiation, a study indicates that there is no increased risk of brain cancer to those who been exposed to military radar systems. Importantly, 38 C.F.R. § 3.311 only provides service connectin for in-service ionizing radiation exposure, not non-ionizing radiation exposure. In sum, there is no competent credible evidence of record that the Veteran was exposed to ionizing radiation while working on the Hawk missile system during service, and such exposure is not presumed under VA regulation. The Board has considered the numerous medical opinions that the Veteran's disability could be caused by radiation exposure. The Board finds that these opinions lack probative value. The probative value of medical opinions is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). There is no requirement that additional evidentiary weight be given to the opinion of a medical provider who treats a veteran; courts have repeatedly declined to adopt the "treating physician rule." See White v. Principi, 243 F.3d 1378, 1381 (Fed. Cir. 2001). The claims file includes May 2006 correspondence from Dr. C.S.P., stating the Veteran recently had surgery on his anaplastic oligodendroglioma and that in his opinion there is a strong indication that this disability is as likely as not a direct result of the Veteran maintaining the Hawk missile system for two years during service. In May 2006, correspondence was received from Dr. M.E.O., whose letterhead reflects he is a fellow of the American College of Surgeons. Dr. M.E.O. performed the Veteran's December 2005 surgery to remove his brain cancer. He opined that the Veteran's current brain cancer is as least as likely as not connected to his job maintaining radar on the Hawk missile system during service. There is also a March 2008 letter from Dr. J.V., who works at the brain tumor center at Duke University and is a board certified oncologist. Dr. J.V., stated that he reviewed the Veteran's STRs and discussed his close proximity exposure to radar antennas. The doctor opined that the Veteran's disability is at least as likely as not service-connected to his job of maintaining radar as part of the Hawk missile system. The claims file also includes April 2008 correspondence from Dr. S.A.R. The doctor's letterhead reflects that he specializes in physical medicine and rehabilitation pain management. He stated that the Hawk missile system produced both non-ionizing and ionizing radiation and there is supportive research to show that ionizing and non-ionizing radiation can cause harmful effects to the body. Additionally, he stated that Hawk missile system repair servicemen have an exceptionally high fatality rate due to cancer, more so than the general population. First, these opinions are based on the self-reported unsupported history of the Veteran that he had ionizing radiation exposure in service. As noted above, there is no competent credible evidence of record of any such exposure and the Veteran is not presumed to have been so exposed. In addition, the opinions of Drs. C.S.P., M.E.O., and J.V., lack a rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The report of Dr. S.A.R., provides no concrete opinion as to the etiology of the Veteran's current condition and provides no support for the conclusion that Hawk missile system repairmen have an exceptionally high fatality rate due to cancer. Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (medical possibilities and unsupported medical opinions carry negligible probative weight). Additionally, Dr. S.A.R. is a medical doctor and not shown to have the appropriate training and expertise to find that the Hawk missile system produced ionizing radiation. In sum, the Veteran is not entitled to the presumption of ionizing radiation exposure, there is no competent evidence of record which supports his allegation of ionizing radiation exposure, and he is not competent to report exposure to ionizing radiation. The Board has considered whether the Veteran is entitled to service connection for anaplastic oligodendroglioma (claimed as brain cancer), based on direct causation, but finds that he is not. The only medical opinions with regard to the Veteran's disability relate it to ionizing radiation and are of limited probative value. Additionally, there is no evidence of ionizing radiation in service. While the Director of the Environmental Health Program considered the Veteran's argument that non-ionizing radiation caused his brain cancer, the Director opined that while the Hawk missile system did use non-ionizing radiation, there is a study showing no increased risk of brain cancer by those who been exposed to military radar systems. Therefore, the Director found it was unlikely that the Veteran's anaplastic oligodendroglioma (claimed as brain cancer) could be attributed to ionizing and/or non-ionizing radiation exposure while in-service. This finding was confirmed by the Director of Compensation Service in his December 2011 memorandum. The Board has reviewed the Veteran STRs for evidence of brain cancer but finds that there is no such evidence. The Veteran's STRs reflect that upon his medical entrance examination in August 1972, his head, face, neck and scalp were normal. He was noted to have forehead scars. On his Report of Medical History in August 1972, the Veteran stated he had no history of head injuries, tumors, growths, cysts or cancer. There are no records indicating any treatment for or diagnosis of brain cancer in-service. Upon the Veteran's March 1975 separation medical examination, his head, face, neck and scalp were normal. A notation of the Veteran's pre-existing forehead scar was made. The Veteran stated upon his March 1975 Report of Medical History that he had no head injuries, tumors, growths, cysts or cancer. The Veteran was first diagnosed with brain cancer over 30 years after separation from active duty service. As previously stated, although lay persons are competent to provide opinions on some medical issues, the nexus between in-service radiation exposure and subsequent anaplastic oligodendroglioma (claimed as brain cancer), falls outside the realm of common knowledge of a lay person. See Kahana, 24 Vet. App. at 435; see also Jandreau, 492 F.3d at 1377 n.4. Additionally, the determination of whether or not the Veteran's MOS as a Hawk radar repairman exposed him to ionizing radiation requires specialized expertise. The Board appreciates the Veteran's honorable service and sympathizes with his physical situation. However, there is no probative evidence of a nexus between the Veteran's current anaplastic oligodendroglioma (claimed as brain cancer) and in-service exposure to radiation. Although opinions from various doctors indicate a nexus between his brain cancer and radiation exposure in service, there is no competent objective evidence the Veteran was exposed to ionizing radiation in-service and thus, the opinions are not probative. A probative medical opinion is of record, stating that there is no nexus between the Veteran's non-ionizing radiation exposure in-service and his current disability. Service connection may not be granted upon a showing of continuity of symptoms from service as the evidence does not reflect the Veteran had brain cancer, or symptoms of brain cancer, in service. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55. ORDER Service connection for anaplastic oligodendroglioma (claimed as brain cancer), including as due to in-service exposure to ionizing radiation, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs