Citation Nr: 1325198 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 10-11 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for lymphomatoid papulosis, claimed as due to exposure to ionizing radiation. 2. Entitlement to service connection for anaplastic large T-cell lymphoma, claimed as due to exposure to ionizing radiation. REPRESENTATION Veteran represented by: Frank J. Del Barto, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1943 to December 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In September 2011, a Travel Board hearing was held before the undersigned at the Chicago RO (and the Veteran's claims file is now in the jurisdiction of that RO). A transcript of the hearing is in the Veteran's file. In December 2011, the Board remanded the case to the RO for additional development. As the opinion received was deemed inadequate for rating purposes, the Board, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, sought a medical expert opinion from the Veterans Health Administration (VHA) in May 2013. Such opinion was received in July 2013. 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. Competent evidence relates the Veteran's lymphomatoid papulosis to his exposure to X-rays during active service. 2. Competent evidence relates the Veteran's anaplastic large T-cell lymphoma to his exposure to X-rays in service. CONCLUSIONS OF LAW 1. Service connection for lymphomatoid papulosis is warranted. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). 2. Service connection for anaplastic large T-cell lymphoma is warranted. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claims are being granted, further discussion of the VCAA is not necessary. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). It is the Board's duty to assign probative value to the evidence and then to weigh the evidence favorable to the veteran's claim against the evidence unfavorable to the veteran's claim. If the favorable evidence outweighs the unfavorable evidence or if the favorable and unfavorable evidence are in relative equipoise, the Veteran prevails and the claim must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The Veteran maintains that he has lymphomatoid papulosis (LyP) and anaplastic large T-cell lymphoma (ALCL) attributable to his exposure to X-rays during World War II service. He described using a portable X-ray machine, taking hundreds of pictures of repatriated American and allied prisoners, up to 12 to 15 hours a day, while assigned to a hospital ship that was stationed in Japan from September to December 1945. The initial diagnosis in the 1990s was the LyP, which later developed into ALCL in 2007. In September 2011, the Veteran testified that he initially was in pharmacy school and became a medic but later served as an X-ray technician in 1945. He asserted that he was unaware of the dangers of radiation when he operated the X-ray equipment (he noted he did not have any formal training as an X-ray technician and did not use any protective shields). He indicated that he manifested such symptoms as skin lesions and weight loss many years after service, and subsequently learned that he had a positive test for T-cell lymphoma in about 1994. The Veteran served on active duty from April 1943 to December 1945. He was confirmed to have served with the 212th Hospital Ship Complement aboard USAHS Marigold, arriving in Yokohama, Japan on August 31, 1945, where he remained until November 10, 1945, when his ship departed for the United States via the Philippines. He arrived in Los Angeles, California on December 16, 1945 and was separated from service soon thereafter. On his Enlistment Record and Report of Separation (WD AGO Form 53-55), his military occupational specialty was pharmacist technician. The service treatment records are silent for any findings of LyP or ALCL. Postservice private medical records, dated in 1988 (or what appears to be 1988) show that the Veteran was treated for various skin lesions, noted as seborrhea and actinic keratosis. In about 1993 or 1994, LyP was diagnosed. In April 1995, he was seen by M. Haid, M.D., in regard to the management of LyP. In the Veteran's history, Dr. Haid noted with interest "the fact that the [Veteran] worked as a medic while in the military on a hospital ship... [using] antiquated x-ray equipment which provided no shielding and certainly no measurement of radiation exposure to the operator." The Veteran sought a second opinion with L. Bigler, M.D., during office visits in February 1996 and March 1996, and the diagnosis of LyP was confirmed. The Veteran's private treating physician, D. Fretzin, M.D., noted, in an August 2007 statement, that he had followed the Veteran since 1995 for LyP, proven by biopsy. He further noted that the overall course of the disease had been intermittent and no systemic therapy had been required up to that time. In May 2007, the Veteran began experiencing severe diarrhea and weight loss. He underwent an extensive workup and was diagnosed with ALCL in September 2007. Since then, he has received such treatment as numerous cycles of chemotherapy. Dr. Fretzin, a dermatopathologist, offered two medical opinions regarding the etiology of the Veteran's claimed diseases. In a September 2011 statement, he noted that he had diagnosed and followed the Veteran for over 20 years for LyP, a CD-30 positive lymphoid disorder best regarded as a low grade cutaneous T-cell lymphoma. He also noted that the transition to a more aggressive lymphoma, such as large cell anaplastic CD-30 lymphoma, was well recognized. Dr. Fretzin acknowledged that the etiology of the disease was unknown, but he stated that irradiation exposure was a known trigger for malignant hematologic diseases. As applied to the Veteran's case, he found the Veteran's history of exposure to unprotected X-ray processing during service "could certainly be a predisposing factor" to the development of LyP and subsequent ALCL. In an August 2012 statement, Dr. Fretzin, who described himself as a retired clinical professor of dermatology and pathology with over 40 years of experience in such disorders, noted that he had reviewed the medical records in VA files and additional medical records from private physicians. He reiterated that the etiology of the Veteran's conditions was unknown but that it was "as likely as not" that they "may be related to exposure to radiation received as an X-ray tech during his service." In determining X-ray exposure as a possible etiologic cause, he noted that the Veteran had a negative family history of cancer and lacked other carcinogenic factors in his history, and that X-ray exposure was a known cause of leukemia and lymphoma. In a December 2012 VA medical opinion a VA physician disagreed with Dr. Fretzin's opinion. Citing to medical literature, she asserted that the etiology of LyP was unknown. She then concluded that as there was no factual scientific evidence supporting a claim of X-ray exposure causing the LyP, it was less likely than not that the Veteran's LyP was etiologically related to his exposure to X-rays in service. Further, as the etiology of the Veteran's ALCL was LyP, the examiner concluded that it was also less likely than not that the ALCL was etiologically related to exposure to X-rays in service. The examiner stressed that she found no factual evidence-based medical literature to support the Veteran's claims. In May 2013, in view of the conflicting opinions, which were deemed inadequate for rating purposes because they were all conclusory, without adequate explanation of rationale or citation to medical literature, the Board sought a medical expert opinion through the VHA to reconcile the various findings in the record. The Board sought answers to the following questions: (1) is exposure to X-ray irradiation a known etiological factor for the development of LyP and/or ALCL?; and (2) was the Veteran's in-service exposure to radiation via X-rays sufficient to trigger the development of his LyP or ALCL? In July 2013, the VHA expert, a radiation physicist, furnished an opinion that was favorable to the Veteran. He relied upon an estimate of the radiation exposure received by the Veteran during his employment in the service, which was prepared by a medical physicist (the estimate was supplied as an attached document). From the estimate, the Veteran was likely exposed to a level of 109 mGy or more due to scatter and/or leakage (and possibly a much higher level if the Veteran had any direct exposure). Per the guidelines for exposure limits for workers provided by the National Council on Radiation Protection & Measurements, the recommended limit of exposure for workers was 5 mGy annually. Based on such information, the expert found the Veteran was exposed to at least a 20 fold higher amount of radiation exposure than was considered acceptable for a worker in one year. The expert then summarized his research on radiation exposure as an etiologic factor in the development of malignancy and LyP. In responding to the questions posed by the Board in its request, the expert noted that while there was no specific information that suggested that radiation exposure was a known etiologic factor for the development of LyP or ALCL, the lack of research did not remove the possibility that radiation exposure could lead to the development of the conditions. As radiation exposure was a known mutagen and carcinogen, he found it to be biologically plausible that radiation exposure was a potential etiologic factor in the genetic abnormalities found in LyP and cutaneous ALCL. Additionally, radiation exposure, as an immunosuppressive agent, was another mechanism associated with the development of LyP and cutaneous ALCL. In sum, the expert found that as the Veteran was exposed to at least a 20 fold higher amount of radiation exposure than is considered acceptable for a worker in one year, and given that radiation exposure was a known carcinogen and that its association with malignancy was "stochastic" (probability of it occurring increases with dose; no threshold), the Veteran's amount of radiation exposure during service - 109 mGy or higher - was sufficient to trigger the development of LyP and the development of secondary malignancies later in life including ALCL. In view of the foregoing, there is satisfactory proof that the Veteran's LyP and ALCL are related to his exposure to X-rays during his active service during World War II. As noted, there are medical opinions of record, with inadequate rationale, that are both favorable and unfavorable to the claims. One common denominator in those opinions is that there is nothing specific in the medical literature that states radiation exposure is a known cause of LyP and ALCL; the etiology/cause of LyP and ALCL is unknown. When the Board sought a medical opinion through the VHA to reconcile the disparities, the expert also agreed that there was no specific information to suggest that radiation exposure was an etiologic factor for the development of LyP and ALCL. However, such a possibility still existed and was considered biologically plausible, as discussed by the expert. In short, the expert's conclusion essentially found that the evidence was at least in equipoise that exposure to X-rays during service had a role in the development of the Veteran's LyP and ALCL. Acknowledging the conflicting medical evidence in the file that weighs both for and against the Veteran's claims for service connection, the Board nevertheless finds that the comprehensive review and discussion of the VHA expert, in a report dated in July 2013, is particularly probative and entitled to great weight. The VHA expert considered the Veteran's estimated dose of radiation exposure during service and the exposure limit considered acceptable for radiation safety, described the disabilities in sufficient detail, and rendered an opinion supported by the facts and a reasoned explanation, connecting the facts and the conclusion, so that the Board's decision is a fully informed one. Accordingly, there is competent evidence to support that the Veteran's LyP and ALCL are etiologically related to his exposure to X-rays during his active service from April 1943 to December 1945. As the disabilities are due to injury or disease incurred in service, service connection for LyP and ALCL is warranted. ORDER Service connection for lymphomatoid papulosis is granted. Service connection for anaplastic large T-cell lymphoma is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs