Citation Nr: 1318898 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-46 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for residuals of plasmacytoma/ myeloma with removal of L2 with stabilization surgery as due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to May 1976 and from April 1977 to January 1989. This matter comes to the Board of Veterans' Appeals (Board) from April 2008 and October 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi which, in part, denied entitlement to service connection for residuals of plasmacytoma with removal of L2 with stabilization surgery as due to exposure to ionizing radiation. Jurisdiction of this matter was transferred to the RO in St. Louis, Missouri. The Board notes that entitlement to service connection for myeloma was denied in the April 2008 and October 2008 rating decisions. In his December 2008 notice of disagreement (NOD), the Veteran only referred to his "plasma-cytoma cancer." However, in expanding the claim on appeal to encompass myeloma in addition to plasmacytoma, the Board is also cognizant of the recent decision of the Court in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court found that the Board erred in not considering the scope of the Veteran's claim for service connection for PTSD as including any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record (in that case, diagnoses of anxiety disorder and schizoid disorder). In this case, there is evidence of an April 2005 pathology report that was suggestive of plasmacytoma. While a February 2008 letter from a private physician noted that the Veteran did not have multiple myeloma, the Board notes that a plasmacytoma is defined as plasma cell dyscrasia as well as a solitary myeloma. Multiple plasmacytomas are referred to as multiple myeloma. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1302 (28th edition 1994). The Veteran had one plasmacytoma; therefore, he had one (not multiple) myeloma. Hence, while the December 2008 NOD only referenced "plasma-cytoma cancer", the Board has now characterized the appeal as encompassing the matter set forth on the title page. FINDINGS OF FACT 1. The Veteran was diagnosed with plasmacytoma of the spine in 2005. 2. The Veteran did not participate in a "radiation-risk activity" as defined by regulation for purposes of presumptive service connection for diseases specific to radiation-exposed veterans. He was, however, exposed to ionizing radiation through his service on nuclear submarines. 3. The preponderance of the evidence is against a finding that plasmacytoma/ myeloma was incurred during service or is related to events in service, to include exposure to ionizing radiation; and there is no evidence that plasmacytoma/ myeloma manifested to a compensable degree within one year following discharge from service. CONCLUSION OF LAW The criteria to establish service connection for residuals of plasmacytoma/myeloma with removal of L2 with stabilization surgery as due to exposure to ionizing radiation are not 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 FINDINGS AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). 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 any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided satisfactory notice to the Veteran in a December 2007 letter, prior to the date of the issuance of the appealed April 2008 rating decision. The letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify has been met. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. VA has obtained the Veteran's service treatment and personnel records, to include radiation dose information, and has assisted the Veteran in obtaining medical evidence. See 38 C.F.R. § 3.311. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has also obtained a medical opinion in this case. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted, the RO developed this case pursuant to the provisions of 38 C.F.R. § 3.311, and such development included obtaining an appropriate medical opinion the Under Secretary for Health, through the Chief Public Health and Environmental Hazards officer. The Board finds that opinion obtained in this case is adequate. It is predicated on a substantial review of the relevant evidence, particularly of the Veteran's in-service radiation exposure and subsequent assessment of plasmacytoma. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issue addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). Based on the foregoing, VA has sufficiently satisfied its duties to inform and assist the Veteran in the development of his claim, and he is not prejudiced by the Board considering the merits of the claim in this decision. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Law and Regulations The Veteran contends that the residuals of plasmacytoma are due to exposure to ionizing radiation during his service aboard several nuclear submarines. Specifically, he contends that while he was not exposed to massive doses of radiation, he was exposed to low levels over a long period of time, which he believes caused his cancer. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, to establish a right to compensation for a present disability, 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). Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may also be granted for certain chronic diseases, including malignant tumors, if manifested to a compensable degree within one year following discharge from active military service. 38 C.F.R. §§ 3.307, 3.309 (2012). Each theory of entitlement is discussed in turn below. Presumptive Service Connection - Section 3.309/Radiation Certain types of cancer will be presumptively service-connected in radiation-exposed veterans. A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d) (3) as a veteran who, while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean on site participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(d)(3)(i), (ii). The Veteran in this case, while confirmed to have been exposed to radiation through nuclear submarines, does not fall within the definition of a "radiation-exposed veteran" for the purposes of the presumption. Because the Veteran is not a "radiation-exposed veteran" for the purposes of the presumption, the presumption under 38 C.F.R. § 3.309 is not applicable. For the sake of completeness, however, even if the Veteran were to be considered a radiation-exposed Veteran in this context, his cancer of the spine is not considered a presumptive disease for radiation. In particular, diseases specific to radiation-exposed veterans are the following: leukemia (other than chronic lymphocytic leukemia), thyroid cancer, breast cancer, cancer of the pharynx, esophageal cancer, stomach cancer, cancer of the small intestine, pancreatic cancer, multiple myeloma; lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), salivary gland cancer, cancer of the urinary tract, bronchio-alveolar carcinoma, bone cancer, brain cancer, colon cancer, lung cancer, and ovarian cancer. 38 C.F.R. § 3.309(d) (2). Again, while the evidence confirms a myeloma (that of plasmacytoma), the Veteran does not have a diagnosis of multiple myeloma. Therefore, service connection under this section is not warranted. Presumptive Service Connection - Section 3.309/Chronic Diseases As noted above, malignant tumors that become manifest to a certain degree within one year of separation from service will be presumptively service-connected. In this case, the Veteran's diagnosis of malignancy was in 2005, 16 years after separation from service. Therefore, this presumption does not apply. Service Connection - Section 3.311 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation. Section 3.311(a) calls 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 radiation exposure, such as this Veteran's claim, a request will be made for any available records concerning the Veteran's exposure to radiation. These records normally include but may not be limited to the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a) (2) (iii). In this case, the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141) was obtained and confirms that he was exposed to ionizing radiation from October 1970 to September 1986. An estimated maximum total effective dose equivalent, or sum of external and internal dose, for the Veteran was approximately 0.176 rem. The next question is whether he has a radiogenic disease. Pursuant to 38 C.F.R. § 3.311, "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes the following: all forms of leukemia, except chronic lymphocytic leukemia; thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2)(i) -(xxiv). Section 3.311(b)(5) requires that bone cancer become manifest within 30 years after exposure, posterior subcapsular cataracts become manifest within 6 months or more after exposure, leukemia become manifest at any time after exposure, and that other diseases specified in section 3.311(b)(2) become manifest 5 years or more after exposure. Here, the Veteran has a defined radiogenic disease, falling into the catchall category of "any other cancer" that manifested five or more years after exposure. As such, the regulation requires referral to the Under Secretary for Benefits to make a determination, to include whether an advisory opinion is required from the Under Secretary for Health. In September 2008, the RO forwarded the Veteran's dose information and other documents to the Under Secretary for Benefits, who in turn forwarded the information to the Under Secretary for Health for review in conjunction with the procedures outlined above. The Under Secretary for Health requested that the Chief Public Health and Environmental Hazards Officer review the Veteran's information in order to form an opinion. In an October 2008 memorandum, the Chief noted the Veteran's duties in service, reviewed the Record of Occupational Exposure to Ionizing Radiation (DD Form 1141) dosimetry information, and applied such to the Interactive Radioepidemiological Program of the National Institute for Occupational Safety and Health. To facilitate calculations, the photon dosage was regarded as acute radiation occurring from a single exposure in 1971, the year of the first nonzero readings on the Veteran's dosimeter badges, and the neutron dosage as chronic radiation exposure in 1985, the year of the first subsequent nonzero readings on his badges. These assumptions would tend to increase the probability of causation in the calculation. The program calculated a 99th percentile value (meaning a high degree of confidence) for the probability of causation of 0.14 percent (meaning there was a less than one percent chance of probability). As such, the Chief Officer opined that it was unlikely that the Veteran's plasmacytoma is attributable to ionizing radiation exposure while in the military service. In October 2008 letter to the RO, the Director of Compensation and Pension Service opined that, as a result of the opinion of the Chief Public Health and Environmental Hazards Officer and a review of the evidence in its entirety, there was no reasonable possibility that the Veteran's plasmacytoma was the result of his occupational exposure to ionizing radiation during military service. Entitlement to service connection for residuals of plasmacytoma/myeloma with removal of L2 with stabilization surgery is not established pursuant to the provisions of 38 C.F.R. § 3.311. Although it is conceded that the Veteran was exposed to ionizing radiation in service and dose estimates were obtained, the most probative opinion of record reflects that it is very unlikely that the Veteran's plasmacytoma is attributable to this exposure. As explained in detail above, it has been determined by the VA Under Secretary for Health, based upon the dose estimates, that it is unlikely that the Veteran's plasmacytoma is related to his exposure to ionizing radiation. The Board finds the opinion of the Chief Public Health and Environmental Hazards Officer to be highly probative on the issue of whether the Veteran's radiogenic disease is related to his exposure to radiation through service on nuclear submarines. The officer was provided all Veteran-specific information available, and rendered an opinion that is supported by a clearly stated rationale. The VHA officer is a recognized expert in the field, who relied on established, national standards for causation estimates. As will be more fully discussed below, the remaining evidence, consisting of the Veteran's lay statements and internet research, does not rise to the level of competency required to make such a technical medical determination. As such, the Board finds that service connection is not warranted pursuant to section 3.311. Direct Service Connection 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. This requires evidence of a current disability, an event in service, and a nexus between the two. Here, the record is clear that the Veteran has a current disability and that he was exposed to radiation in service. The focus, therefore, is on whether there is a nexus between the two. The sole medical opinion of record is that of the Chief Public Health and Environmental Hazards Officer described above; the Board has found it to be highly probative on the issue of nexus. The evidence in favor of the claim consists of the Veteran's lay statements and his submitted research. First, while the Veteran submitted internet website information discussing generally ionizing radiation, the information provided does not contain any assessment which relates specifically to the Veteran, his level of exposure, and his medical history. Therefore, this evidence has limited probative value and is outweighed by the aforementioned medical opinion against the claim. Regarding the Veteran's lay statements, the Board notes that the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The disability at issue in this case is plasmacytoma/myeloma, a complex cancer that has affected the Veteran's spine. While he is competent to report that he has residuals of the cancer, as he can observe them, the Board finds that he is not competent to state that his cancer is the result of his service. Establishing the etiology of plasmacytoma/myeloma clearly requires expert medical knowledge, given that it is not something capable of lay observation. As such, the Veteran's contentions regarding the etiology of plasmacytoma/myeloma are of little probative weight given his lack of demonstrated medical expertise. The Board has also considered the Veteran's contentions as to his in-service exposure and his belief that the dose estimates are incorrect. Nevertheless, the Board finds that the most probative evidence concerning the level of exposure to ionizing radiation comes from his Record of Occupational Exposure to Ionizing Radiation (DD Form 1141). There, experts in the field of dosimetry reviewed his service personnel records and calculated the dosimetry level based on his occupational exposure. The Board notes that in cases where there is competing dosimetry data, the Board is authorized to conduct further development by having that data reviewed by an independent expert. See 38 C.F.R. § 3.311(a) (3). Here, however, the Veteran has not submitted competing dosimetry evidence, nor offered plausible reasons as to why the dose established by experts is incorrect. Accordingly, the Board has placed greater probative weight on the conclusions reached by the Chief Public Health and Environmental Hazards Officer, who, as a medical professional, is competent to render opinions regarding medical matters. The Board finds that the preponderance of the evidence is against the Veteran's claim; therefore, the benefit of the doubt provision does not apply. Service connection is not warranted. ORDER Entitlement to service connection for residuals of plasmacytoma/myeloma with removal of L2 with stabilization surgery as due to exposure to ionizing radiation is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs