Citation Nr: 1318089 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 12-09 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for prostate cancer to include as due to exposure to ionizing radiation. 2. Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and M.R. ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from February 1945 to September 1949. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2011 of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. The claim of service connection for a bilateral hearing loss disability is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT Prostate cancer was not affirmatively shown to have been present in service; prostate cancer was not manifested to a compensable degree within one year from the date of separation from service; prostate cancer, first documented after service, is unrelated to an injury or disease in service; prostate cancer is not subject to the presumption of service connection due to radiation-risk activity; prostate cancer is not due to in-service exposure to ionizing radiation; and prostate cancer is not actually caused by ionizing radiation. CONCLUSION OF LAW The criteria for service connection for prostate cancer to include as due to exposure to ionizing radiation have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudicatory VCAA notice by a letter dated in September 2009. The Veteran was notified of the evidence needed to substantiate a claim of service connection to include as due to exposure to ionizing radiation. The Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on her behalf. The notice included the general provisions for the effective date of a claim and the degree of disability assignable. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service personnel records and service medical records as well as VA and private medical records. In support of the Veteran's claim that prostate cancer was caused by in-service exposure to ionizing radiation, VA created a Scenario of Participation and Radiation Exposure based on the Veteran's reports and service records, which the Veteran reviewed and affirmed was accurate. Based on this information, VA obtained a VA medical opinion and a statement from the Defense Threat Reduction Agency. As the medical evidence is sufficient to decide the claims, a VA examination is not warranted. 38 C.F.R. § 3.159(c)(4). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims are required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSION Principles of Service Connection Service connection may be granted for a disability resulting from an injury or disease incurred or aggravated in military service. 38 U.S.C.A. §§ 1110, 1131. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service 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). Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including cancer, if the cancer manifests to a compensable degree within the year after service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. If a veteran participated in service in a radiation-risk activity, and, after service, developed one of the specifically enumerated cancers, it will be presumed that the cancer was incurred in service. Prostate cancer is not on the list of specific diseases associated with radiation-risk activity. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). If a veteran was exposed in service to ionizing radiation and, after service, developed any form of cancer, then his claim is referred to the Under Secretary for Benefits who must determine, based on the extent of the exposure, whether there is a reasonable possibility that the disease was incurred in service. 38 C.F.R. § 3.311. Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence In statements and testimony, the Veteran states that he was exposed to ionizing radiation, while participating in the occupation of Japan after World War II while aboard the U.S.S. Sherburne and that his ship entered the harbor of Tokyo, resulting in prostate cancer. The service personnel records show the Veteran served aboard the U.S.S. Sherburne from June 1945 to March 1946 as a Steward's Mate First Class, and based on research conducted by the RO, the RO determined that the ship arrived in Hiroshima, Japan on October 6, 1945, and departed from Hiroshima on October 11, 1945. The ship also visited Yokohama (approximately 415 miles from Hiroshima and 580 miles from Nagasaki) from September 2 to 4, 1945, and Iyo Nadi (approximately 50 miles from Hiroshima and 150 miles from Nagasaki) from October 5 to 6, 1945. The service medical records, including the reports of enlistment and separations examinations, contain no complaint, finding, or history of a prostate abnormality, including cancer. After service, prostate cancer was diagnosed in June 1994, and the Veteran subsequently underwent related surgical treatment. In July 2010, the Defense Threat Reduction Agency reported that the Veteran had 0.000 rem for internal and upper bound committed alpha doses to the prostate and for internal and upper committed beta plus gamma doses to the prostate and no neutron radiation. The combined external gamma dose was 0.003 rem with an upper bound of 0.008 rem. In January 2011, the Radiation and Physical Exposures Director of VA stated that based on the dose estimates provided by the Defense Threat Reduction Agency, the likelihood of the Veteran's exposure to ionizing radiation causing prostate cancer is calculated as a 99th percentile value for the probability of causation of 0.01%. This estimated likelihood was calculated using the Interactive Radioepidemiological Program of the National Institute for Occupational Safety and Health. Accordingly, the Director stated that it is unlikely that the Veteran's prostate cancer can be attributed to ionizing radiation exposure while in service. In January 2011, VA's Director of Compensation and Pension Service, citing the Defense Threat Reduction Agency dose estimate and the opinion of the Radiation and Physical Exposures Director of VA, expressed the opinion that there is no reasonable possibility that the Veteran's prostate cancer resulted from radiation exposure in service. Analysis On the basis of the service medical records, prostate cancer was not affirmatively shown to have had onset during service. 38 U.S.C.A. §§ 1110, 1131; 338 C.F.R. § 3.303(a). The Veteran does not assert and there is no other competent lay or medical evidence either contemporaneous with or after service that prostate cancer was noted or observed during service, and the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. The record does show that after service prostate cancer was first documented in June 1994, 45 years after the Veteran's discharge from service in 1949 and well beyond the one-year presumptive period for prostate cancer as a chronic disease under 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.306, 3.309. Excluding radiation exposure, the Veteran does not assert and there is no other competent lay or medical evidence that prostate cancer, first documented after service, is otherwise related to an injury or disease or event in service. 38 C.F.R. § 3.303(d). As for establishing presumptive service connection under 38 C.F.R. § 3.309(d), pertaining to diseases specific to a radiation-exposed Veteran, a "radiation-exposed Veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a Veteran who, while serving on active duty, participated in a radiation-risk activity. A "radiation-risk activity" includes 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. Although the Veteran participated in the occupation of Hiroshima, Japan, in October 1945, prostate cancer is not a disease subject to presumptive service connection on the basis of radiation exposure under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d)(2). As for establishing service connection under 38 C.F.R. § 3.311, prostate cancer is considered a radiogenic disease. Under 38 C.F.R. § 3.311, there is no presumption of service connection for a radiogenic disease, rather 38 C.F.R. § 3.311 provides special procedures for evidentiary development and adjudication of a claim. In accordance with 38 C.F.R. § 3.311, the RO requested a dose estimate from the Defense Threat Reduction Agency to determine the amount of the Veteran's exposure to ionizing radiation. The Agency reported that the upper bound total external gamma dose would have been 0.008 rem with a total external gamma dose of 0.003 rem; and that the Veteran had 0.000 rem for internal and upper bound committed alpha doses to the prostate or internal and upper committed beta plus gamma doses to the prostate. Also in accordance with 38 C.F.R. § 3.311, the RO forwarded the case to the Director of the Compensation and Pension Service, who requested an opinion from the Radiation and Physical Exposures Director of VA. The Director, citing a study program by the National Institutes of Health, estimated that the probability of causation by ionizing radiation was less than one percent for prostate cancer. In light of the scientific study, the VA physician expressed the opinion that it was unlikely that the Veteran's prostate cancer can be attributed to exposure to ionizing radiation in service. In an Advisory Opinion in accordance with 38 C.F.R. § 3.311, the Director of the Compensation and Pension Service, citing the VA medical opinion and a review of the evidence in its entirety, expressed the opinion that there was no reasonable possibility that the Veteran's prostate cancer resulted from radiation exposure in service, which is persuasive evidence against the claim. Notwithstanding the foregoing, the Veteran may still establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran does assert that prostate cancer is related to exposure to ionizing radiation in service. The Veteran as a lay person is competent to offer an opinion of a simple medical condition, that is, one capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009), see 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses). Cancer is not a condition under case law that has been found to be capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons are not competent to diagnose cancer). Although the Veteran as a lay person is competent to provide an opinion on a simple medical condition, as cancer is not capable of lay observation and as the Veteran's lay opinion on the question of whether exposure to ionizing radiation causes prostate cancer falls outside the realm of common knowledge of a lay person, and as no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between exposure to ionizing radiation and prostate cancer, the Veteran's lay opinion is not competent evidence. Since the Veteran's lay opinion is not competent evidence, the Veteran's opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. And there is no competent lay or medical evidence favorable to the claim on the question of whether exposure to ionizing in amount of the Veteran's exposure actually caused prostate cancer. As there is no competent lay or medical evidence favorable to the claim for the reasons articulated, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for prostate cancer to include as due to exposure to ionizing radiation is denied. REMAND On the claim of service connection for a bilateral hearing loss disability, the Veteran is service-connected for noise-induced tinnitus related to service. On VA examination in September 2010, the VA examiner stated it would be speculative to relate the current bilateral hearing loss to service, because of the lack of audiometric data during service. As the VA examiner relied on the absence of medical records to corroborate hearing loss in service and as the lack of contemporaneous medical evidence is not a bar to the Veteran's ability to prove his claim, a new examination under the duty to assist is needed. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA audiology examination by a VA examiner, who has not previously examined the Veteran, to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that the current bilateral hearing loss disability as shown on VA examination September 2010 is related to noise exposure in service? In formulating the opinion, the VA examiner is asked to consider that: Although there is no contemporaneous record of impaired hearing in service, the Veteran as a lay person is competent to describe symptoms of impaired hearing and the Board finds the Veteran's statements credible. Stated differently, the VA examiner must account for the Veteran's statement about the onset of impaired hearing as it relates to the current diagnosis. Also, the VA examiner is asked to comment on the etiological relationship between the service-connected tinnitus and bilateral hearing loss. If, however, after a review of the record, an opinion is not possible without resort to speculation, the VA examiner is asked to clarify that the opinion cannot be rendered because there are other potential causes for hearing loss unrelated to noise exposure in service. And please identify the other potential causes, when the noise exposure in service is not more likely than any other etiology to cause the current hearing loss and that an opinion is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. The Veteran's file must be available to the VA examiner for review. 2. After the development is completed, adjudicate the claim of service connection for a bilateral hearing loss disability. If the benefit sought is denied, then provide the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs