Citation Nr: 1324192 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 13-04 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been submitted in order to reopen a claim of entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation. 2. Entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from May 1952 to April 1956. This matter is on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction over the appeal is currently with the RO in San Diego, California. 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. In a May 2009 rating decision, the claim of entitlement to service connection for prostate cancer was denied on the basis that it was not related to active duty service, and the evidence failed to establish that the Veteran had been exposed to ionizing radiation. 2. The evidence added to the record since the May 2009 decision became final, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim of service connection for prostate cancer. 3. The Veteran was exposed to ionizing radiation while participating in Operation CASTLE from March to May 1954. 4. Prostate cancer was not shown in service or for many years thereafter, and is unrelated to active duty service or to exposure to ionizing radiation. CONCLUSIONS OF LAW 1. The May 2009 rating decision that denied the Veteran's claim for entitlement to service connection for prostate cancer, to include as due to ionizing radiation exposure, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. The evidence received subsequent to the May 2009 rating decision is new and material, and the requirements to reopen the claim for entitlement to service connection for prostate cancer, to include as due to ionizing radiation exposure, have not been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.156 (2012). 3. Prostate cancer was not incurred in or aggravated by service, and not related to service or to ionizing radiation exposure. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in December 2010 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. This letter also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. While there are additional notice requirements for claims to reopen based on new and material evidence, such as notifying a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought, there are no longer applicable in this instance, as the Board has decided to reopen the claim. Kent v. Nicholson, 20 Vet. App. 1 (2006). Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Further, the Veteran submitted treatment records from a private facility as well as his own statements in support of his claim. In the context of a claim for a disorder that may be due to ionizing radiation exposure, VA is required to follow the steps set forth in 38 C.F.R. § 3.311, which include taking the necessary steps to ascertain a veteran's estimated radiological dose as well as referring all requisite information to the Director of Compensation and Pension (C&P) for an opinion as to whether a veteran's disorder may be attributable to such exposure. In this case, an opinion was not obtained from C&P, but instead may be adequately addressed under the "expedited process" created by VA's Chief of Public Health and Environmental Hazards Officer. As explained below, prejudice to the Veteran is avoided by applying presumptions that are most favorable to his specific claim, and there is no evidence to indicate that these presumptions could not be applied here. Thus, the Board finds that the "expedited process" is adequate to adjudicate this claim, and that no prejudice has arisen from the fact that an opinion from C&P was not specifically obtained. The Board acknowledges that a VA medical opinion was not obtained regarding either issue on appeal. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In deciding whether to remand the issue for a medical nexus opinion, the Board notes that a VA medical examination is not required as a matter of course in virtually every veteran's disability case involving a nexus issue. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran, in which case an examination may not be required). Here, the Board has determined that the Veteran's prostate disorder was not shown in service or for many years later and, without such evidence, a VA examiner would be substantially unable to provide a meaningful opinion. Moreover, in following the development steps set forth in 38 C.F.R. § 3.311 for radiogenic diseases, a separate opinion from a VA examiner is not necessary regarding the impact of the Veteran's radiation exposure. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, "new" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C.A. § 5103A (eliminates the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). However, for the purpose of establishing whether new and material evidence has been received, the credibility of such evidence is to be presumed unless "patently incredible" See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Veteran has submitted a claim seeking entitlement to service connection for prostate cancer, which he asserts is due to exposure to ionizing radiation while in service. This claim was previously denied by the RO in May 2009 on the basis that the evidence did not establish that he was exposed to ionizing radiation, and there was insufficient evidence to establish that his prostate cancer was directly related to service. He did not appeal that decision, nor did he submit any new and material evidence within a year of the May 2009 rating decision. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of the claim Based on the evidence submitted since the last final denial of this claim, the Board determines that it should be reopened. Specifically, prior to the May 2009 rating decision, the Veteran had asserted that he was involved in Operation IVY, a series of atmospheric nuclear detonations that were conducted in the Pacific Ocean in November 1952. However, after filing the current claim on appeal, the RO obtained sufficient evidence to establish that the Veteran was instead a participant in Operation CASTLE, a series of atmospheric nuclear detonations at the Pacific Proving Grounds from March to May 1954. The evidence of record since the last final denial of the claim also now includes dose estimates from the Defense Threat Reduction Agency (DTRA), as well as a record of the Veteran's recorded dose. Not only is all of this evidence "new" in that it was not considered prior to the last final denial of the claim, but it is also all "material," as it is evidence that relates to an unestablished fact necessary to support service connection. Specifically, it establishes that the Veteran was exposed to ionizing radiation, where it had not been established before the May 2009 rating decision. Therefore, the Board concludes that new and material evidence has been submitted to reopen the claim of entitlement to service connection for prostate cancer, to include as secondary to ionizing radiation exposure, and this claim is reopened. See Shade, 24 Vet. App. at 110. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In some cases, the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders. 38 C.F.R. § 3.303(b); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). However, the United States Court of Appeals for the Federal Circuit has recently held that service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a). As is relevant here, prostate cancer is considered a chronic disease under 38 C.F.R. § 3.309(a), and may be service connected under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, service connection will also be presumed for such diseases if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2012). Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Ionizing Radiation Exposure In this case, the Veteran has been diagnosed with prostate cancer, and it is his contention that this disorder is related to his participation in Operation CASTLE, a series of atmospheric nuclear detonations that were conducted at the Pacific Proving Grounds from March to May 1954. Establishing service connection for a disorder on the basis of exposure to ionizing radiation during service can be shown in two different ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, a radiation-exposed veteran may be presumptively service-connected for any of the specific diseases listed in 38 C.F.R. § 3.309(d), which encompass a variety of different forms of cancer. Under this section, a "radiation-exposed veteran" is one who participated in a radiation-risk activity which, by definition, means the onsite participation in a test, or within six months of the test, involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at other certain specified sites. 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. If the requirements for presumptive service connection under 38 C.F.R. § 3.309(d)(3) are not met, service connection may also be established if the evidence shows the existence of any other "radiogenic" diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2) or other claimed diseases considered to be radiogenic through a showing of competent scientific or medical evidence. 38 C.F.R. § 3.311(b)(4). When it has been determined that: (1) a veteran has been exposed to ionizing radiation; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. §§ 3.311(b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is "at least as likely as not" that the disease resulted from in-service radiation exposure or whether there is "no reasonable possibility" that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). As to whether service connection may be warranted on a presumptive basis, the Board notes that VA received a letter from the DTRA in November 2011, establishing that the Veteran was a confirmed participant in Operation CASTLE while serving on board USS ESTES (AGC-12). Thus, he is a "radiation-exposed veteran" for purposes of service connection under 38 C.F.R. § 3.309(d). However, service connection is nonetheless not warranted on a presumptive basis, as prostate cancer is not one of the disorders specifically listed as a disease that is specific to "radiation-exposed veterans" in 38 C.F.R. § 3.309(d)(2). The Board recognizes the Veteran's argument that prostate cancer should be considered a "cancer of the urinary tract," which is one of the disorders listed in 38 C.F.R. § 3.309(d)(2), and also understands that many prostate disorders can impact an individual's urinary functioning. However, 38 C.F.R. § 3.309(d)(2) is explicit in that, for purposes of this section, the term "urinary tract" is confined to the kidneys, renal pelves, ureters, urinary bladder and urethra. Therefore, while the Board acknowledges that the Veteran is a "radiation-exposed veteran" for purposes of 38 C.F.R. § 3.309(d), prostate cancer is not a disorder that is listed as a disease that is specific to "radiation-exposed veterans," and service connection on a presumptive basis is not warranted under this section. Service connection on a presumptive basis having not been established, the Board next considers whether service connection is warranted as a radiogenic disease under 38 C.F.R. § 3.311. It is noted at the outset that prostate cancer may be considered a radiogenic disease for purposes of this section, as 38 C.F.R. § 3.311(b)(2)(xxiv) establishes that any form of cancer will be considered as such. Thus, the salient question is whether it is at least as likely as not that the Veteran prostate cancer is attributable to the amount of exposure he received. In this regard, the Veteran stated in September 2008 that he, along with a number of other crewmen on board USS ESTES, were taken topside and personally observed at least one of the detonations. In fact, it appears that ionizing radiation exposure was expected, as the evidence includes an exposure record reflecting a total whole-body dose of 4.445 rem for the period from February to May 1954. Based on the nature, circumstances and extent of the Veteran's ionizing radiation exposure, the Board is able to conclude that his prostate cancer is less likely than not related to such exposure. In this regard, C&P has coordinated with VA's Chief Public Health and Environmental Hazards Officer to develop a specialized methodology in order to expedite the processing of prostate disorder claims without the need for individual review by that office. As was explained in a December 2006 letter, which is of record, this process is based on the presumption that a veteran received the worst-case dose (as determined by the DTRA) and, based on this presumed exposure, VA may apply research provided by C&P in order to determine whether a relationship between prostate cancer and ionizing radiation exposure may be excluded. Thus, only in cases where a relationship cannot be excluded is there a need to forward a veteran's specific information to C&P for its opinion. In this case, the DTRA determined in November 2011 that Veteran's participation in Operation CASTLE did not include any activities that would have resulted in a dose higher than the worse-case dose which, for a veteran in Operation CASTLE, was a total exposure of 25 rem (based on an external gamma dose of 18 rem, external neutron dose of .5 rem, internal committed dose to the prostate due to alpha particle radiation of 4.5 rem and internal committed dose due to beta and gamma radiation of 2 rem). The Board tangentially notes that this worst-case dose is far more than the dose his exposure record indicates that he actually received. Next, according to the research performed by C&P and VA's Chief Public Health and Environmental Hazards Officer, an individual must be exposed to an adjusted dose of 40 rem in order for it to be at least as likely as not that his prostate cancer is attributable to ionizing radiation exposure. As the Veteran's worst-case dose is considerably less than 40 rem (also known as a "screening dose"), a medical relationship is not established. In addition to the above, C&P has also determined that all veterans who served in the Pacific Proving Grounds and were either (a) diagnosed with prostate cancer 25 or more years after exposure, or (b) were exposed to ionizing radiation at the age of 25 or older, received prostate doses that are less than the "screening dose." Here, the Veteran's DD-214 indicates that he was 19 years old when he participated in Operation CASTLE. Moreover, if the Board were to presume that a diagnosis of prostate cancer is warranted from the time he began to exhibit elevated prostate specific antigen (PSA) levels in 2001, he would have been diagnosed approximately 47 years after he was exposed to ionizing radiation. Therefore, given that the Veteran's prostate cancer is not a disorder that may be presumed related to his participation in Operation CASTLE in 1954, service connection is not warranted under 38 C.F.R. § 3.309(d). Moreover, although prostate cancer is a radiogenic disease, service connection is also not warranted under 38 C.F.R. § 3.311, as the information provided by C&P establishes that it is less likely than not that the Veteran's prostate cancer is attributable to even the worst-case scenario of exposure. As such, service connection is not warranted on this basis. Direct Basis Although it has been the Veteran's primary assertion that his prostate cancer is attributable to his ionizing radiation exposure, he is nevertheless not precluded from establishing service connection with proof of actual direct causation as due to active duty service or to asbestos exposure. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). In this case, the service treatment records do not reflect complaints of, treatment for, or a diagnosis related to prostate cancer while in service. Significantly, the Veteran's separation physical examination in April 1956 fails to document any complaints of or observed symptoms related a prostate disorder of any sort. In fact, the post-service evidence does not reflect symptoms related to prostate cancer for many years after the Veteran left active duty service. Specifically, he was not diagnosed with adenocarcinoma of the prostate until September 2010, although it is true that a clinical evaluation in September 2008 indicated that the Veteran was exhibiting elevated PSA levels since 2001. However, even if his prostate cancer were to have originated in 2001, this is still approximately 44 years after he left active duty. Indeed, the Veteran himself has not asserted that he has experienced symptoms related to a prostate disorder since service. Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorder to active duty, despite his contentions to the contrary. Significantly, none of the competent evidence of record indicates a relationship between these disorders and active duty, nor has any treating professional indicated such a relationship. As for all aspects of this appeal, the Board has also considered the statements made by the Veteran relating his prostate cancer to his active service or to his ionizing radiation exposure. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his prostate cancer. See Jandreau, 492 F.3d at 1377, n.4. Because prostate cancer is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements he made regarding the claimed etiology of his prostate cancer are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER New and material evidence having been submitted, the application to reopen a claim of entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation is granted, and the claim is reopened. Service connection for prostate cancer, to include as due to exposure to ionizing radiation, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs