Citation Nr: 1323797	
Decision Date: 07/25/13    Archive Date: 08/06/13

DOCKET NO.  09-16 966	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for non-Hodgkin's lymphoma/mantle cell lymphoma, to include as a result of exposure to ionizing radiation. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. R. Fletcher, Counsel


INTRODUCTION

The Veteran served on active duty from August 1955 to August 1957. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  This case was before the Board in February 2011 when it was remanded for additional development, to include: obtaining the Veteran's service personnel records and any other records which might verify his exposure to ionizing radiation; forwarding the available evidence concerning the Veteran's in-service exposure to radiation to the Under Secretary for Health for preparation of a dose estimate; and if the dose estimate indicated that the Veteran was exposed to radiation during service, referring the claim to the Under Secretary for Benefits for further consideration.  As discussed below, such development was accomplished to the extent possible following the remand.  The Board finds that there has been substantial compliance with its remand instructions and additional remand is not required.  D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim.  The documents in the VVA file are duplicative of the evidence in the paper claims file.

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 did not participate in a "radiation-risk activity" during his active service. 

2.  The estimated dose exposure of the Veteran to ionizing radiation is 8.75 rem.

3.  The medical evidence reflects that there is no reasonable possibility that the Veteran's non-Hodgkin's lymphoma/mantle cell lymphoma resulted from exposure to radiation during service.

4.  Non-Hodgkin's lymphoma/mantle cell lymphoma was first manifest nearly 40 years after the Veteran's service, and there is no competent evidence suggesting this cancer is otherwise related to service. 


CONCLUSION OF LAW

The criteria for service connection for non-Hodgkin's lymphoma/mantle cell lymphoma, to include as due to exposure to ionizing radiation, have not been met.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA) 

The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832 ) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." 

The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

Here, the Veteran was mailed a letters in May 2007 advising him of what the evidence must show and the respective duties of VA and the claimant in obtaining evidence, as well as the appropriate notice with respect to the disability-rating and effective-date elements of the claim.  The Veteran was provided complete notice prior to the initial adjudication of the claim in May 2008.

The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim.  In this regard, the Board notes that all available service personnel records, post-service treatment records, radiation exposure findings, and opinions from the Director of Environmental Health Program and the Director of Compensation and Pension Service.  [In this regard, multiple searches for service treatment records (STRs) and additional service personnel records were unsuccessful.  There is a heightened obligation to explain findings and conclusions and to consider carefully the benefit of the doubt rule in cases, such as this, in which records are presumed to have been lost or destroyed while the file was in the possession of the government.  See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); see also O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The Veteran was notified of these findings.  Moreover, the Board's analysis of the Veteran's claim has been undertaken with this duty in mind.]  Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence.  Evidentiary development is complete. 

For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue on appeal.

Service Connection for Non-Hodgkin's Lymphoma/Mantle Cell Lymphoma

In a claim received in January 2007, the Veteran maintained that he was exposed to ionizing radiation from transporting nuclear warheads, and that this radiation caused his recurring cancer.  Specifically, the Veteran stated that he was assigned to the 101st Airborne Honor Guard Company at Fort Campbell, Kentucky.  He reported that this assignment was a ruse because the company's classified mission actually was to deliver nuclear artillery warheads to various international destinations. 

Initially, the Board notes that it 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) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 

Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cancer becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall 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.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 

Claims based upon exposure to ionizing radiation are governed by separate regulations and each provides a distinct basis for establishing service connection based on exposure to ionizing radiation.  See 38 C.F.R. §§ 3.309, 3.311.  First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d).  Second, 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.  The fact that the requirements of the above regulations are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation.  See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).

A disease associated with exposure to radiation listed in 38 C.F.R. § 3.309(d) will be considered to have been incurred in service under the circumstances outlined in that section.  Specifically, if a veteran while on active duty participated in a radiation-risk activity, then the diseases listed under 38 C.F.R. § 3.309(d) shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 

Lymphomas (except Hodgkin's disease) is one of the types of cancers that can be presumptively service connected for radiation exposed Veterans.  38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d)(1)(x).  It is also a radiogenic disease.  38 C.F.R. § 3.311(b)(2) (xxii). 

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" is defined as 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 (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)(ii).

The provisions of 38 C.F.R. § 3.311 outline the procedures to be followed for adjudication purposes for certain radiation claims not falling within the presumptive provisions of 38 C.F.R. § 3.309(d).  To consider service connection under section 3.311, the evidence must show the following: (1) the veteran was exposed to ionizing radiation in service, (2) he subsequently developed a radiogenic disease, meaning a disease that may be induced by ionizing radiation, and (3) such disease first became manifest within a period specified by the regulations.  38 U.S.C.A. § 501; 38 C.F.R. § 3.311(b).  For non-Hodgkin's lymphoma and mantle cell lymphoma (under the category of "Lymphomas other than Hodgkin's disease"), the disease must have manifested five years or more after exposure.  38 C.F.R. § 3.311(b)(5).  If these three requirements are met, the claim must be referred for consideration by the Under Secretary for Benefits (here the Director of Compensation and Pension Service).

The Veteran's DD Form 214 shows that he entered active duty in August 1955 at age 18.  He was discharged in August 1957 at age 20.  His military occupational specialty was light weapons infantry and he had no foreign service.  His last duty assignment was with the 1st Airborne Battalion, 502nd Infantry Group.   

Post-service private treatment records show that the Veteran underwent a right groin adenectomy in June 1996.  Pathology revealed malignant lymphoma.  A diagnosis of non-Hodgkin's lymphoma/mantle cell lymphoma was confirmed in 1998.

In a November 2006 statement, Dr. T.T., the Veteran's treating physician, stated that the Veteran's non-Hodgkin's lymphoma/mantle cell lymphoma was diagnosed after a history of exposure to nuclear bomb heads and radiation attached to that work.  He opined that this exposure as likely as not cause the Veteran's cancer. 

In a March and May 2007 statements, J.H.H. stated that he served with the Veteran as members of the Fort Campbell honor guard in November 1955.  J.H.H. stated that he left the honor guard in May 1957, but the Veteran remained there until the end of 1957.  He stated that honor guard duties were a "cover" for the members' real duties, which were to pick up and deliver nuclear weapons to sites around the world.

In March 2008, the RO requested a DD Form 1141 or equivalent record of occupational radiation exposure from the Director of the Proponency Office for Preventative Medicine.  In April 2008, the United States Army Dosimetry Center (USADC) stated that they were not in possession of any records of the Veteran being occupationally exposed to ionizing radiation while in service. 

The RO also requested the Veteran's complete service treatment records from the National Personnel Records Center (NPRC) via the Personnel Information Exchange System (PIES) in early May 2007.  The NPRC responded later that month by indicating that there were no service treatment records or Surgeon General Office records because they were fire related.  By letter dated in July 2007, the Veteran was informed that his military records may have been destroyed due to a fire at the National Archives and Records Administration in 1973.  He also was informed that he could submit a variety of documentation to substitute for his service medical records.  In an April 2008 letter, he again was informed that he could submit substitute documentation for his service medical records.  He replied to these letters by submitting a buddy statement from a Veteran he served with as well as in-service photographs.  A formal finding of unavailability was made with respect to the Veteran's service treatment records in late April 2008 as it was determined that future attempts to obtain these records would be futile.  Thereafter, he was informed by letter dated in late April 2008 that VA had exhausted all efforts to obtain these records.

The RO requested the Veteran's complete service personnel records from the NPRC in May 2011.  The NPRC responded in August 2011, stating that there were no service personnel records because they were fire related.  By letter dated in September 2011, the Veteran was informed that his service personnel records may have been destroyed due to a fire at the National Archives and Records Administration in 1973.  

In October 2011 memorandum, the Director of Compensation and Pension Service summarized the Veteran's history and contentions.  It was noted that searches of SHARE did not reveal a J.H.H. in the Army during the same time period as the Veteran.  

In a January 2013 letter, the Director of Occupational Health Sciences at the U.S. Army Institute of Public Health noted that the Veteran's military duties (to include maintaining, storing and escorting radioactive weapons) did not meet the definition of a Radiation Risk Activity.  The Director noted that the USADC had no record of the Veteran to indicate occupational exposure to ionizing radiation.  In this regard, it was noted:

Individual radiation monitoring is usually initiated if the anticipated exposure is 10 percent of the occupational exposure limit of 5 rem per year, set in 1960.  The lack of dosimetry/bioassay records may indicate that [the Veteran's] occupational exposure to ionizing radiation was not greater than 0.5 rem per year.

The Director reported that a search of classified document archives of Special Weapons Exposure Files also failed to include the Veteran's name.  The Director noted that the Veteran worked directly with special weapons for about 21 months.  In the course of routine operations, excluding accidents (of which none were noted in the file), the Veteran was not expected to receive whole-body ionizing radiation exposure in excess of the annual occupational limit of 5 rem per year.  In the course of routine operations, the Veteran was not expected to receive an exposure of ionizing radiation to his extremities.  Based on this information, the Director estimated that an upper limit of 21 months at 5 rem/year, or 8.75 rem, for the Veteran's possible whole-body ionizing radiation dose.

In a March 2013 memorandum, the Director of the Post-9/11 Era Environmental Health Program, for the Under Secretary of Health, reviewed the dose estimate of 8.75 rem made by the Director of Occupational Health Sciences at the U.S. Army Institute of Public Health and noted that with a dose below 5-10 rem, the "risks of health effects are either too small to be observed or are nonexistent."  He concluded that because the Veteran's radiation dose did not exceed 5 rem in one year or 10 rem in a lifetime, "it is unlikely that [his] non-Hodgkin's lymphoma can be attributed to radiation exposure while in military service."

In an April 2013 advisory opinion, the Director of Compensation and Pension Service summarized the Veteran's history and exposure.  He noted that the Veteran was 19 years old at the time of exposure to ionizing radiation, and was diagnosed with non-Hodgkin's lymphoma 38 years after that initial exposure.  He also noted the Veteran's history of smoking for more than 25 years.  As a result of the March 2013 opinion noted above and following a review of the evidence in its entirety, the Director of Compensation and Pension Service opined that there is no reasonable possibility that the Veteran's non-Hodgkin's lymphoma is attributable to radiation exposure in service. 

Additional evidence submitting by the Veteran consists of newspaper articles as to the duties of the honor guard and medical treatise evidence as to the relationship between radiation exposure and certain cancers.

In the case at hand, the Veteran is not a "radiation-exposed veteran" as defined by 38 C.F.R. § 3.309(d)(3).  He did not participate 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 (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.  Therefore, service connection cannot be presumptive by application of 38 C.F.R. § 3.309(e). 

Next the Board turns to 38 C.F.R. § 3.311.  Again, that section provides that 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 § 3.309, and it is contended that the disease is a result of exposure to ionizing radiation during 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).  Here, the Veteran was diagnosed with lymphoma nearly 40 years after service.  Therefore, his claim was properly referred to the Director of Compensation and Pension Service, who sought an opinion from the Under Secretary of Health (here the Director of the Post-9/11 Era Environmental Health Program).  38 C.F.R. § 3.311(c).  As noted above, the Directors opined that the Veteran's lymphoma is not likely attributable to his level of exposure to ionizing radiation in service.  These opinions were provided after a review of the claims file and included reasons and bases for the opinions.

The Board acknowledges the opinion provided in support of the Veteran's claim by his private physician in November 2006.  However, this opinion did not include any reasons and bases.  Moreover, the opinion did not contain any dose estimate information or a discussion of other possible causes, to include the Veteran's smoking history.  Among the factors for assessing the probative value of a medical opinion are the examiner's access to the claims file, and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  A medical opinion is inadequate when it is unsupported by clinical evidence.  Black v. Brown, 5 Vet. App. 177, 180 (1995); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).

As a final matter, the Board will address service connection on a direct basis or as a presumptive chronic disability pursuant to 38 C.F.R. § 3.309(a). 

As noted above, the Veteran's STRs are missing, and the RO exhausted all possible avenues to obtain these as stated in a formal finding of unavailability.  The Board notes, however, that the Veteran does not allege that he was treated for lymphoma during service.  Rather, his contention has always been that his cancer is due to radiation exposure during service.  Moreover, the evidence of record does not show, nor does the Veteran contend, that the Veteran suffered from lymphoma within the year following discharge from service.  Therefore, service connection on a direct basis or presumptive basis as a chronic condition pursuant to 38 C.F.R. § 3.309(a) is denied.

Regarding the medical treatise evidence referenced by the Veteran, the Court has held that a medical article or treatise, "can provide important support when combined with an opinion of a medical professional," if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion.  Sacks v. West, 11 Vet. App. 314 (1998).  The medical treatise, [textbook, or article] must provide more than speculative, generic statements not relevant to the appellant's claim but must discuss generic relationships with a degree of certainty for the facts of a specific case.  Wallin v. West, 11 Vet. App. 509, 514 (1998).  In this case, however, the article was submitted by the Veteran and was not accompanied by the medical opinion of a medical professional.  In addition, the article does not provide statements for the facts of the Veteran's specific case.  For these reasons, the Board finds that the article does not contain the specificity to constitute competent evidence of the claimed medical nexus.  See Sacks, 11 Vet. App. at 317; see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996).

While the Board does not doubt that the Veteran sincerely believes that his lymphoma is related to his radiation exposure during service, there is no indication that he has specialized training in determining the etiology of lymphoma, to include whether such are related to radiation exposure.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, lymphoma can have many different causes, thereby requiring medical expertise to determine the etiology.  

In sum, the preponderance of the evidence is against a finding of service connection for non-Hodgkin's lymphoma/mantle cell lymphoma pursuant to the radiation provisions in 38 C.F.R. § 3.309(d) and 38 C.F.R. § 3.311, pursuant to the presumptive provisions in 38 C.F.R. § 3.309(a) as a chronic disease, and pursuant to direct service connection under 38 C.F.R. § 3.303.  Accordingly, the claim is denied.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Service connection for non-Hodgkin's lymphoma/mantle cell lymphoma as a result of exposure to ionizing radiation is denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs