Citation Nr: 1318697 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-43 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from February 1953 to April 1957. The Veteran also had service in the Air Force reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran's claim was most recently remanded for further development in March 2013. The requested development has been completed and the case has since been returned to the Board for adjudication. No further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran was exposed to ionizing radiation while serving aboard a B-36 aircraft sometime between September 1956 and October 1956 near Alaska and Russia. 2. Prostate cancer was diagnosed nearly 49 years after the Veteran's separation from service. 3. Prostate cancer was not shown in service, and there is no reasonable possibility that the Veteran's prostate cancer can be attributed to military service, including exposure to ionizing radiation in service. CONCLUSION OF LAW The Veteran does not have prostate cancer that is the result of disease or injury incurred in or aggravated during active military service, including as due to exposure to ionizing radiation. 38 U.S.C.A. §§ 1110, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, the Veteran received 38 C.F.R. § 3.159(b) notice in a May 2007 letter. The May 2007 notice was issued prior to the appealed July 2007 rating decision. In the May 2007 letter, the Veteran was also notified of VA's practices in assigning disability evaluations and effective dates for service-connected disabilities pursuant to Dingess/Hartman. There are accordingly no deficiencies of notification in this case, nor has the Veteran argued otherwise. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4) (2012). In this case, VA and private medical records concerning the claimed prostate cancer have been obtained to the extent possible, and there is no indication of additional relevant treatment records concerning this disability. In a March 2013 letter, VA requested that the Veteran submit the names/addresses of treating for all medical care related to his prostate cancer. Release of information forms were included with the March 2013 letter. The Veteran did not reply, nor has he indicated that there are any outstanding treatment records related to his prostate cancer. As such, VA has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment described by the Veteran. In its March 2013 remand, the Board requested a VA medical examination in conjunction with this claim. The Board notes that the claims file contains an April 2013 Disability Benefits Questionnaire (DBQ) addressing the matters referenced in the Board's remand, notably the question of the etiology of the Veteran's claimed prostate cancer. The findings included therein were based upon a claims file review and, in lieu of a physical examination, a phone interview with the Veteran. The Board has considered whether this examination format, notably the use of a phone interview rather than a physical examination, was sufficiently compliant with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (a remand by the Board confers upon a claimant, as a matter of law, the right to compliance with remand orders). In this regard, the Veterans Health Administration (VHA) issued VHA Directive 2012-025, "Acceptable Clinical Evidence (ACE) to support the Compensation and Pension (C&P) Disability Evaluation Process," on September 17, 2012, which establishes the policy for responding to requests from Veterans Benefits Administration (VBA) for disability evaluations. When appropriate, the ACE process may be used whereby clinicians may consider the medical evidence currently in existence and a Veteran's claims file or medical records, supplemented by a telephone interview if necessary, and use that existing evidence to prepare a DBQ instead of requiring some veterans to be examined in-person. The Directive is only applicable when VBA has not specified that an in-person or telehealth examination be conducted and when a Compensation and Pension clinician determines that sufficient medical evidence exists to complete the evaluation. In this case, the April 2013 DBQ report was provided by a VA doctor who reviewed the claims file and determined that "[a]n in-person examination cannot yield further relevant information regarding the above opinion, and therefore would not alter" the opinion rendered. The Board would note that the VA examiner's opinion is supported by a detailed rationale and that it was manifestly clear at the time of the examination that the Veteran had been diagnosed with prostate cancer. For these reasons, the Board finds that the DBQ examination report represents substantial compliance with the Board's remand request. All necessary information requested by the Board - notably an etiology opinion - was furnished, and there is no reasonable possibility that strict compliance with the remand request (i.e., a physical examination) would result in findings favorable to the Veteran. See D'Aires v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131 (West 2002). 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) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, 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). When a chronic disease, to include malignant tumors, becomes manifest to a degree of 10 percent within one year of the Veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the Veteran's period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this case, the Veteran was not diagnosed with prostate cancer until multiple years after service. As such, service connection on a presumptive basis is not warranted. A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection for a disability claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Hilkert v. West, 12 Vet. App. 145 (1999); aff'd, 232 F.3d 908 (Fed. Cir. 2000). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans under 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, direct service connection may be established under 38 C.F.R. § 3.303(d) by showing that the disease or malady was incurred during or aggravated by service. Third, service connection may 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." See 38 C.F.R. § 3.311(b)(2), (4) (2012). Certain specified disabilities becoming manifest in a "radiation-exposed veteran" shall be service connected. See 38 U.S.C.A. § 1112(c)(1), (2); 38 C.F.R. § 3.309(d)(1), (2). The term "radiation-exposed veteran" means a veteran who participated in a "radiation-risk activity." See 38 U.S.C.A. § 1112(c)(3)(A); 38 C.F.R. § 3.309(d)(3)(i). The term "radiation-risk activity" means onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war of Japan during World War II resulting in an opportunity for exposure to radiation comparable to those occupying Hiroshima or Nagasaki; certain presence on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 at Oak Ridge, Tennessee; or certain service before January 1, 1974, on Amchitka Island, Alaska. 38 U.S.C.A. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii); 67 Fed. Reg. 3,612-16 (Jan. 25, 2002). VA has established special procedures to follow for those seeking compensation for diseases related to exposure to radiation in service. See Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, 98 Stat. 2725 (1984); 38 C.F.R. § 3.311. This regulation provides that: In all claims in which it is established that a radiogenic disease first became manifest after service . . . and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. When dose estimates provided . . . are reported as a range of doses to which a veteran may have been exposed, exposure at the highest level of the dose range reported will be presumed. 38 C.F.R. § 3.311(a)(1). This regulation establishes a series of chronological obligations upon both parties. Wandel v. West, 11 Vet. App. 200 (1998). First, there must be evidence that the Veteran suffered from a radiogenic disease. 38 C.F.R. § 3.311(b)(2), (4). This disease must manifest within a certain time period. 38 C.F.R. § 3.311(b)(5). Once a claimant has established a diagnosis of a radiogenic disease within the specified period and claims that the disease is related to radiation exposure while in service, VA must then obtain a dose assessment. 38 C.F.R. § 3.311(a)(1). After it is determined by the dose assessment that the Veteran was exposed to radiation, the RO is then required to refer the case to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311(b). When the claim is referred, the Under Secretary for Benefits shall consider the claim with reference to the factors specified in 38 C.F.R. § 3.311(e) and may request an advisory opinion from the Under Secretary for Health. 38 C.F.R. § 3.311(c)(1). After referral, the Under Secretary for Benefits must then determine the likelihood that the claimant's exposure to radiation in service resulted in the radiogenic disease. 38 C.F.R. § 3.311(c)(1). This section provides two options: (i) If after such consideration the Under Secretary for Benefits is convinced sound scientific and medical evidence supports the conclusion it is at least as likely as not the veteran's disease resulted from exposure to radiation in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction in writing. The Under Secretary for Benefits shall set forth the rationale for this conclusion, including an evaluation of the claim under the applicable factors specified in paragraph (e) of this section. (ii) If the Under Secretary for Benefits determines there is no reasonable possibility that the Veteran's disease resulted from radiation exposure in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction, in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311(c)(1). Because this determination relies heavily on medical and scientific findings and analysis, the Under Secretary for Benefits may request an advisory opinion from the Under Secretary for Health to assist in carrying out the obligation imposed by this regulation. See 38 C.F.R. § 3.311(c)(1) (authorizing the Under Secretary for Benefits to request an advisory opinion from the Under Secretary for Health). Factual Background and Analysis The Veteran contends that he was exposed to ionizing radiation sometime between September 1956 and October 1956 during atmospheric testing in the Bering Sea area off the coast of Alaska and Russia. He stated that the operation was known as Soviet Russia Atmospheric Nuclear Testing, and he witnessed one test. He recalled being issued one dosimeter worm and it was displayed on his dog tags. He described the mission as including orbit inside the nuclear cloud to allow technicians to collect samples of debris. The Veteran remained in the explosion area for several hours until the dosimeter indicated maximum allowable exposure levels, but he did not move toward ground zero. A review of the Veteran's service treatment records shows no treatment for, or complaints related to, any prostate disability. Separation physical examination revealed a history of hydrocele, asymptomatic and pilonidal cyst, asymptomatic. Post-service reserve physical examinations in 1966, 1968, 1969, and 1970 showed no complaints of or diagnoses related to a prostate disability. The Veteran was diagnosed as having moderately differentiated adenocarcinoma (prostate cancer) in November 2005. The Veteran was 72 years old at the time of the diagnosis and he was noted to have a family history of prostate cancer-including a younger brother who died at age 62 due to prostate cancer. In an October 2007 statement, the Veteran specified that he participated in a September 1956 mission including a flight into a nuclear debris cloud area. He stated that this cloud was generated by a Soviet Russian Atmospheric Nuclear Test. In April 2009, VA contacted the Air Force Technical Applications Center (AFTAC) seeking verification of the Veteran's involvement in non-U.S. nuclear bomb testing. VA requested a radiation dose estimate. In a June 2009 response, the AFTAC Inspector General's Office (IGO) responded that there were no non-U.S. nuclear bomb tests in October 1956. Therefore, they could not verify the Veteran's participation or provide a radiation dose estimate. In his September 2009 substantive appeal, the Veteran indicated that he erroneously thought his exposure was in October 1956, when in fact it was September 2, 1956. He stated that the AFTAC IGO attempted to verify his exposure using an inaccurate date provided by the Veteran. In March 2010, the IGO at AFTAC was again contacted and asked to provide a dose estimate based upon the new date of September 2, 1956. In a response that same month, the Chief, Environment, Safety & Occupational Health, and AFTAC Health Physicist provided a dose estimate for the Veteran's exposure. She stated that based upon the documentation provided, she confirmed the Veteran's participation in a radiation-risk activity. The Veteran participated in a non-U.S. atmospheric nuclear debris collection activity as an aircrew member aboard a B-36 aircraft. She found that the Veteran did not fly against a Soviet Atmospheric Nuclear Test on September 2, 1956, rather he flew against the Soviet test that occurred on August 30, 1956. She indicated that historically, the Soviets did not announce ahead of time when they would perform their atmospheric testing, and thus, there is no way an aircraft could be "on-site" the day of an event. The Chief stated that the U.S. would come in after it detected the event to collect nuclear debris sampling. She noted that these sampling missions would commence anywhere from 2 to 10 days after the event. The Chief indicated that she is providing the most conservative dose estimate based on the Veteran's military documentation. She calculated a whole body dose as the Veteran may have been exposed to small amounts of nuclear debris while participating in the sampling missions. She noted that no dose adjustments were made for any protection that may have been gained by the Veteran using personal protective equipment such as a respirator. The Chief opined that the Veteran may have been exposed to as much as 170.1 mrem of ionizing radiation (deep dose) over the external surface of his body. Further calculations indicate that the Veteran's may have been exposed to 0.36 mrem of internal ionizing radiation. The total effective dose equivalent (TEDE) or sum of external and internal dose is approximately 170.46 mrem. She noted that according to 10 C.F.R. § 20.1201, the annual TEDE limit for occupationally exposed individuals is 5000 mrem per year. In May 2011, the RO transferred the Veteran's claims file to the Director of Compensation Service for review and an opinion with respect to his in-service ionizing radiation exposure and his post-service prostate cancer. The Director of Environmental Agents Service (DEAS) provided an opinion in June 2011 regarding the etiology of the Veteran's claimed prostate cancer. The Director pointed that it was unlikely that the Veteran's prostate cancer is attributable to his radiation exposure on active duty. In reaching this conclusion, the Director noted that the Veteran was born in 1933 and his prostate cancer was diagnosed in 2005. He also indicated that the Veteran's TEDE was 0.17046 rem. Further, the Director cited treatise evidence from the Health Physics Society's Radiation Risk in Perspective (revised in August 2004), which discouraged quantitative estimation of health risks when the individual has a dose of 5 rem or less in one year or 10 rem lifetime dose. In other words, the risks of health effects for dosages below 5-10 rem from occupational and environmental exposure are "either too small to be observed or are nonexistent." As such, the Director found that the Veteran's prostate cancer was unlikely due to his in-service radiation exposure. In a June 2011 response from the office of the Director of Compensation Service, he indicated he reviewed the claims folder, including the dosage documentation. He opined that the Veteran was 23 years old when he was exposed to ionizing radiation in service, and was diagnosed as having prostate cancer nearly 49 years after this exposure. Noted was his post-service employment history as a seller of consumer goods, with retirement in 1984. The Veteran indicated he is a non-smoker, and his younger brother died at age 62 of prostate cancer. Also noted was the June 2011 referral to the Under Secretary of Health for an opinion as to whether the Veteran's prostate cancer is at least as likely as not related to his exposure to ionizing radiation during service. Cited was the DEAS opinion as well as the dosages calculated by the IGO at AFTAC. For the reasons noted above, the Director of Compensation service found that "there is no reasonable possibility that the [V]eteran's prostate cancer can be attributed to his occupational exposure to ionizing radiation in service." During the Veteran's December 2012 Travel Board Hearing, he disagreed with VA findings that his recorded radiation exposure was too little to be dangerous. He indicated that there were missions wherein he did not wear a dosimeter, and these included flying with a bomb in the bomb bay. He stated there were times when his plane was unable to land in certain places and that led him to believe the airplane was "hot." He also recalled that the planes were stripped down on the edge of a field and their flight suits were put in barrels before they could leave the runway. The Veteran testified that his actual number of radiation dose is probably a lot higher than what VA estimated. The Veteran referenced and also submitted newspaper articles regarding aircraft flying through radioactive clouds to see how far a bomb blast could be measured. He also submitted numerous pictures of planes to show how he was likely within 4 feet of whatever nuclear debris was coming in the plane for collection. Pursuant to the Board's March 2013 remand, the Veteran was afforded a VA examination in April 2013 to obtain an opinion as to the etiology of his prostate cancer. Although the Veteran was not physically present for the examination, he was interviewed by phone and the examiner reviewed the Veteran's claims file prior to reaching his opinion. The Veteran's history of prostate cancer was noted, and he is currently in remission. The examiner opined that the Veteran's prostate cancer is less likely than not related to an in-service injury, event, or illness. In reaching this conclusion, the examiner indicated that radiation exposure may be a risk of prostate cancer, but it is usually associated with higher levels of exposure. In addition, he indicated that there is a 31 percent to 83 percent chance that a man in the Veteran's age group will get prostate cancer. Further, the examiner noted that given the overall prevalence in the general population and the evidence of no strong causal link between the Veteran's level of exposure and prostate cancer, it is less likely than not due to his military service. There is no clinical opinion to the contrary. The Board finds that the Veteran's claim of exposure to ionizing radiation during non-U.S. atmospheric testing in 1956 is conceded. Again, the Veteran contends that his prostate cancer is etiologically related to this exposure to ionizing radiation. Initially, the Board observes that although the Veteran meets the criteria for a "radiation-exposed veteran," prostate cancer is not among the diseases listed under either 38 U.S.C.A. § 1112(c)(2) or 38 C.F.R. § 3.309(d)(2) recognized by VA as result of such exposure. Accordingly, service connection for prostate cancer may not be presumed under 38 U.S.C.A. § 1112(c) or 38 C.F.R. § 3.309(d)(2). However, prostate cancer is a "radiogenic disease" under 38 C.F.R. § 3.311(b)(2). Consequently, a radiation dose estimate was obtained for prostate cancer, as discussed above. Correspondence received from the DEAS for the Veteran revealed a total external dose of between 0.1701 rem and internal dose of 0.036 rem, for a total effective dose equivalent of 0.17046 rem. The DEAS and Office of the Director of Compensation Service, opined that the Veteran's dosage estimates are too low to have caused his prostate cancer 49 years after service. The IGO of AFTAC indicated that the annual TEDE limit for occupationally exposed individuals is 5000 mrem, or 5 rem. DEAS cited treatise evidence suggesting that there should be no quantitative estimation of health risks for any individual below a 5 rem dose in one year, or 10 rem lifetime exposure. Again, the Veteran's overall rem was estimated at 0.17046. Finally, the Director of Compensation Service opined that in light of the findings from the DEAS and AFTAC, as well as the Veteran's family history and age, that the Veteran's prostate cancer was unlikely related to his in-service exposure to ionizing radiation. There is no competent, clinical opinion to the contrary. As such, the Board finds that the Veteran is not entitled to service connection under 38 C.F.R. § 3.311. Again, 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 v. Brown, 34 F.3d 1039, 1040 (1994). In this case the Veteran's service treatment records are negative for prostate complaints, treatment, or diagnosis during service. The first objective evidence of prostate cancer is from 2005-nearly 49 years after the Veteran separated from service. It is important to note, that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that this time lapse between exposure and service weighs against the claim. As noted, the medical evidence reveals a diagnosis of prostate cancer; however, there is no clinical showing of a relationship to the Veteran's period of military service. In this case, the Board finds that the April 2013 VA examination report and opinion is the most probative evidence of record as to the issue of nexus because it was definitive, based upon a complete review of the Veteran's entire claims file, to include an interview of the Veteran. Additionally, the examiner provided a detailed rationale for the conclusions reached. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, April 2013 VA examiner's opinion is found to carry significant weight with respect to direct service connection. In short, there is no evidence of prostate cancer during service, and the preponderance of the evidence is against linking any current prostate cancer, or residuals thereof, to service. The Board appreciates the Veteran's contentions that he was exposed to way more radiation than what was documented, but there is no competent evidence to show that the Veteran was exposed to more radiation than estimated by AFTAC. There is also no lay evidence of a continuity of symptomatology between military service and his current diagnosis. Significantly, as a layperson, the Veteran has not demonstrated the level of expertise necessary to render complex medical findings, such as linking his prostate cancer to in-service radiation exposure or to determine the level of radiation exposure he incurred during service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board finds any such contention by the Veteran particularly problematic given the absence of continuity of prostate problems from the time of his in-service radiation exposure. As noted above, the most competent opinions of record addressing the possibility of a relationship between his prostate cancer and his exposure to ionizing radiation found that a relationship between the prostate cancer and in-service ionizing radiation exposure was unlikely. Consequently, the preponderance of the evidence is against the claim. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. §§ 3.102, 4.3 (2012). ORDER Service connection for prostate cancer is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs