Citation Nr: 1320954	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  12-26 935	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to service connection for liposarcoma of the left retroperitoneal space, including as a result of exposure to ionizing radiation.  


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from October 1952 to October 1956.  

This case comes to the Board of Veterans' Appeals (Board) on appeal of a November 2011 rating decision of the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA).  

In May 2013, a travel board hearing was held before the undersigned in Buffalo, New York.  A transcript of the hearing is available for review.  

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 during active military service. 

2.  The Veteran's liposarcoma of the left retroperitoneal space was not manifested during service or within one year thereafter, and is not related to any incident of service, including exposure to ionizing radiation. 


CONCLUSION OF LAW

The Veteran does not have liposarcoma of the left retroperitoneal space that is the result of disease or injury incurred in or aggravated by active military service, including exposure to ionizing radiation, and is not presumed to have been incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.307, 3.309, 3.311 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim.  February and May 2011 letters explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing.  This letter also informed the Veteran of disability rating and effective date criteria.  The Veteran has had ample opportunity to respond and supplement the record.

With regard to the duty to assist, the Veteran's service treatment records (STRs) have been certified as fire related and are not available for review.  The Board does not find that this will prevent a reasoned decision, as the Veteran's contention regarding service connection relates solely on the basis of the Veteran's exposure to ionizing radiation during service and the post service development of liposarcoma.  Pertinent post-service treatment records have been secured.  The Veteran was provided an opportunity to submit additional evidence.  It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a fair disposition of this appeal.  The Veteran provided oral testimony before the Board.  The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim on appeal.  Moreover, as discussed below, VA has undertaken significant efforts to estimate the maximum total dose equivalent of radiation exposure and has developed the case in accordance with the provisions of 38 C.F.R. § 3.311.  Based on a review of the record in this case, the Board concludes that the record on appeal contains sufficient medical evidence to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) (4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2012).  

Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  For the showing of chronic disease, as identified in 38 C.F.R. § 3.309(a), in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  Service connection may also be granted 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).

Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as a malignant tumor, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1990).   The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a).

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).  When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by different methods.  Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997).  First, it may have been manifested during service or within one year of separation.  Second, there are certain types of cancer that are presumptively service connected, specific to radiation-exposed veterans.  38 U.S.C.A. § 1112(c) (West 2002); 38 C.F.R. § 3.309(d) (2012).  Third, when a "radiogenic disease" first becomes manifest after service, and it is contended that the disease resulted from exposure to ionizing radiation during service, various development procedures must be undertaken in order to establish whether or not the disease developed as a result of exposure to ionizing radiation.  38 C.F.R. § 3.311(a) (1).  Fourth, aside from these presumptive provisions, service connection might be established by satisfactory proof of direct service connection.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

First, if a veteran qualifies as a "radiation-exposed veteran" and later develops one of the diseases listed in 38 U.S.C.A. § 1112(c) or 38 C.F.R. § 3.309(d), a rebuttable presumption of service connection arises.  See 38 U.S.C.A. §§ 1112 , 1113; 38 C.F.R. §§ 3.307, 3.309.  These diseases are ones in which it has been determined that a positive association with radiation exposure exists.  In this regard, the Board observes that liposarcoma of the left retroperitoneal space is not one of the diseases listed under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d).  Thus, the first method concerning presumptive service connection based on certain delineated exposures to ionizing radiation does not apply in this case.  38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d) (3) (iii).  

Second, service connection may be established if a veteran develops a "radiogenic disease" (one that may be induced by ionizing radiation, either listed at 38 C.F.R. § 3.311(b) or established by competent scientific or medical evidence to be a radiogenic disease), and if the VA Under Secretary for Benefits (USB) determines that a relationship does in fact exist between the disease and the veteran's exposure in service.  When a claim is based on a disease other than one of those listed in 38 C.F.R. § 3.311(b) (2), VA shall nevertheless consider the claim under the provisions of 38 C.F.R. § 3.311 provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease.  38 C.F.R. § 3.311(b).  In this regard, liposarcoma of the left retroperitoneal space is considered a cancer and, as such, is considered to be listed as a radiogenic disease in 38 C.F.R. § 3.311(b) (2).  

In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. § 3.307 or 38 C.F.R. § 3.309, and it is contended that 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.  38 C.F.R. § 3.311(a) (1).  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) (2).  

When it has been determined that a veteran has been exposed to ionizing radiation in service, and he subsequently develops a potentially radiogenic disease, the claim will be referred to the USB for further consideration.  The USB is to consider the claim with reference to specified factors and may request an advisory medical opinion from the Under Secretary for Health; if, after this consideration, the USB determines that there is no reasonable possibility that the Veteran's disease resulted from radiation exposure in service, then the USB shall so inform the RO in writing, setting forth the rationale for this conclusion.  38 C.F.R. § 3.311.  

Dose data is requested from the Department of Defense in claims based on participation in atmospheric nuclear testing, and claims based on participation in the U.S. 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, 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).  An opinion will be provided as to the probabilities that disease was caused by radiation exposure and the USB will thereafter provide an advisory opinion as to the likelihood that the disease at issue resulted from radiation exposure during military service.  

Third, as noted above, service connection may be established by competent evidence establishing the existence of a medical nexus between the claimed condition and service.  See Combee 34 F.3d at 1039.   

The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record.  See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006).  Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection.  Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007).  As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself.  The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent.  Cartwright v. Derwinski, 2 Vet. App. 24 (1991).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses.  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.); Layno, 6 Vet. App. at 469-71 (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; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).

Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau, 492 F.3d at 1377.  Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). 

VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence.  See Davidson, 581 F.3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), 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 person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).  

Liposarcoma of the Left Retroperitoneal Space

Initially, it is noted that the Veteran is considered to be a "radiation-exposed veteran" as the record shows that he was involved in nuclear testing that took place at the Nevada Test Site in 1953.  Specifically, the Veteran participated in Shot Simon of Operation Upshot-Knothole.  The actual dosage of radiation to which the Veteran was exposed is not available, but in a November 2006 dosage reconstruction conducted by the Defense Threat Reduction Agency's Nuclear Test Personnel Review Program (in association with a claim of service connection for basal cell carcinoma), the Veteran was estimated as having been exposed to an 18 rem external gamma dose, a 2 rem external neutron dose, and a total skin dose to any skin area of 550 rem.  In a September 2011 dosage reconstruction conducted by the Defense Threat Reduction Agency's Nuclear Test Personnel Review Program, for use with this current claim, it was estimated that the Veteran was exposed to an 18 rem external gamma dose, a 2 rem external neutron dose, a 1.5 alpha rem internal committed dose to the soft tissue, and an 8 beta plus gamma rem internal committed dose to the soft tissue.  

During the Board hearing before the undersigned, the Veteran objected to the reduction in dosage estimates.  He correctly points out that there is a significant difference between an estimate of 550 rem and one of 8 rem.  He essentially asserts that the higher estimate should be utilized in this case.  In additional testimony, he related the circumstances surrounding his participation in the testing that took place.  The Board notes, however, that the 2006 estimates were made specifically for the Veteran's claim of service connection for basal cell carcinoma and the 550 rem estimate of skin area exposure.  The external gamma and neutron dose estimates were not changed from those given in the more recent 2011 estimates that were made in connection with the claim of service connection for liposarcoma of the left retroperitoneal space.  The difference is in the internal dose estimates, which are more pertinent to the current claim than an estimate of skin exposure.  Therefore, the Board does not find that there is a discrepancy between the 550 rem skin estimate and the combined 9.5 rem internal alpha, beta, and gamma estimate made in 2011.  

The Board notes that while STRs are not available for review, the Veteran has not contended that he was treated during service for complaints, diagnoses, or manifestations of liposarcoma of the left retroperitoneal space.  The record shows that the Veteran was treated for basal cell carcinoma for which service connection has been established on the basis of his known exposure to ionizing radiation.  A left retroperitoneal tumor, diagnosed on biopsy as liposarcoma, was first found in 2010.  As this disability was not manifested during service or within one year thereafter, entitlement to service connection or based on direct/chronic disease incurrence must be denied.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that the length of time between the Veteran's separation from active duty in 1956 and his first diagnosis of liposarcoma of the left retroperitoneal space in 2010 to be compelling evidence.  Put another way, the nearly 45-year gap between the Veteran's discharge from active duty and the first evidence of a chronic liposarcoma of the left retroperitoneal space weighs heavily against his claim.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd., 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition); Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim).  Moreover, it is noted that the Veteran in this case has not argued that he had continued symptoms since service.  

Liposarcoma of the left retroperitoneal space is not among those forms of cancer which may be presumptively service connected under the provisions of 38 C.F.R. § 3.309 for "radiation-exposed veterans."  Although the Veteran and his representative argued at the Board hearing before the undersigned that the location of the liposarcoma makes it actually a lung or respiratory cancer, it is noted that lung cancer is likewise not one of the forms of cancer that may be presumptively service connected under the abovementioned provisions.  Therefore, service connection cannot be granted under the second method of entitlement.  38 C.F.R. § 3.309(d) ; Sabonis v. Brown, 6 Vet. App. 426   (1994).  However, it is a malignant tumor or cancer so may be considered as a radiogenic disease identified under 38 C.F.R. § 3.311, which, in essence, amounts to recognition on VA's part that exposure to ionizing radiation may be an etiological factor for its development.  The degree to which radiation exposure is a factor in the development of a malignancy varies depending on the type of malignancy, the amount, rate and type of radiation exposure, and other relevant risk factors such as age at time of exposure.  Therefore, the question presented in this case is whether the Veteran's level of radiation exposure was sufficient to cause liposarcoma of the left retroperitoneal space.  

In this case, the Board finds that the preponderance of the medical evidence is against a finding that the Veteran's liposarcoma of the left retroperitoneal space is causally related to his in-service exposure to radiation. 

As noted, the record shows that the Veteran was exposed to an external gamma dose of 18 rem, an external neutron dose of 2 rem, an internal alpha dose of 1.5 rem, and an internal beta plus gamma dose of 8 rem.  In an October 2011 memorandum, the Director of the VA Environmental Agents Service (VAEAS) noted that the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) was used to estimate the likelihood that the Veteran's exposure to ionizing radiation was responsible for the development of the liposarcoma of the retroperitoneal space.  The program calculated a 33.99 percent probability (estimated to the 99th percentile value).  In view of this, it was unlikely that the Veteran's liposarcoma of the left retroperitoneal space could be attributed to ionizing radiation exposure while in military service.  In a follow-up memorandum also dated in October 2011, the VA Director Compensation Service indicated that in light of the findings of the IREP, there was no reasonable possibility that the liposarcoma of the left retroperitoneal space was the result of occupational exposure to ionizing radiation during service.  

The Board finds that the dosage estimates for internal radiation exposure to be more pertinent to the current claim than the higher skin surface estimate made in connection with the Veteran's prior claim.  The Veteran is not claiming service connection for skin cancer at this time, but for an internal liposarcoma of the left retroperitoneal space.  There is nothing in the claims file which would tend to establish that the Veteran's liposarcoma of the left retroperitoneal space is related to his military service other than the Veteran's own contentions.  Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a) ; 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau 492 F.3d at 1372; Buchanan 451 F.3d at 1331 (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  Though the Veteran's personal belief that the liposarcoma of the left retroperitoneal space is due to his in service radiation exposure is well-intentioned, it holds no probative value in this case as he is not shown to possess the requisite medical training and expertise to speak to issues of medical causation.  See Barr v. Nicholson, 21 Vet. App. 303   (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature).  The Board must decide cases such as this in light of sound scientific data, and, based upon the record before the Board, the claim for service connection for liposarcoma of the left retroperitoneal space under 38 C.F.R. § 3.311 must be denied.  

Specifically, the only competent opinion regarding a possible relationship between the liposarcoma of the left retroperitoneal space and radiation exposure was provided by a public health official specifically tasked and specialized in evaluating environmental hazard risks, to include radiation exposure.  The evidentiary record contains no competent medical opinion to the contrary.  As such, the Board finds that the evidence demonstrates that the Veteran's liposarcoma of the left retroperitoneal space, which was first shown medically many years after his period of active service, is not related to events during active service.  Therefore, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved.  38 U.S.C.A. § 5107(b) . 

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ORDER

Service connection for liposarcoma of the left retroperitoneal space, including as a result of exposure to ionizing radiation, is denied.  



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs