Citation Nr: 1328335 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 12-20 906 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for rectal cancer, to include as due to ionizing radiation exposure. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Veteran, Veteran's wife ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from February 1946 to July 1947. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Reno, Nevada. The Veteran testified at a hearing before the undersigned Acting Veterans Law Judge in May 2013. A transcript is associated with the 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 is not a radiation exposed veteran and did not participate in a radiation risk activity in service. 2. The preponderance of the evidence demonstrates that rectal cancer is not related to active service. CONCLUSION OF LAW Rectal cancer was not incurred in active service, to include as due to ionizing radiation exposure. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice must be provided to a claimant before the initial unfavorable adjudication by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the RO provided the Veteran with notice in June 2009, prior to the rating decision which is appealed herein, which explained how VA could help him develop evidence in support of his claim. The June 2009 letter also explained what the evidence needed to show in order to establish service connection for a claimed disability, and also explained how VA assigns ratings and effective dates for service connected disabilities. Thus, notice requirements were satisfied. Additionally, at the May 2013 hearing, the Acting Veterans Law Judge framed the issues and took testimony regarding the essential elements of the claim: in-service radiation exposure and the development of rectal cancer. See 38 C.F.R. § 3.103(c)(2) (2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussions did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. As such, the Board finds that, consistent with Bryant, the RO and undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. The Veteran and his wife testified at a Board hearing that was held in May 2013 and the transcript is of record. Transcripts of hearings held in conjunction with the Veteran's prior appeal, which involved very similar claims, are also of record. The Veteran testified that he received relevant treatment in 1955, but that he had contacted the relevant All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file. The Veteran and his representative contend that documents may be missing from the claims file because the Veteran was assigned a new claim number in 1949. It appears that the Veteran's original claims file was lost by VA and had to be rebuilt. It also appears that the Veteran's original claims file had been maintained at the RO in Los Angeles, California, and/or at the RO in New Orleans, Louisiana. In connection with a prior appeal by the Veteran, the Board requested these VA facilities to conduct a thorough search of their files to attempt to determine whether there were additional outstanding records from the Veteran's claims file which needed to be obtained and associated with the rebuilt claims file. Both ROs responded that they had no records pertaining to the Veteran. It appears that all reasonable efforts to obtain these documents were accomplished in conjunction with the Veteran's prior appeal and further efforts in this regard would be futile. The Veteran was notified that attempts to locate his file were unsuccessful in November 2001 in conjunction with a prior appeal. In connection with a prior appeal, exhaustive efforts were made to obtain the Veteran's STRs (other than his separation examination, which is of record). The National Personnel Records Center (NPRC) notified VA in May 2010 that the Veteran's records had been destroyed in a fire that occurred there in July 1973. Army Reserve Personnel Command and the National Archives and Records Administration had also been contacted to try to determine if they had any service treatment records pertaining to the Veteran; however, these agencies did not have copies of the Veteran's STRs. The Veteran was notified in connection with his previous appeal that his STRs were unavailable. Additionally, at the May 2013 hearing the Veteran's representative acknowledged that the Veteran had also been unable to obtain copies of his STRs and had been informed that the records were lost in the 1973 fire. The Board sympathizes with the Veteran's frustration, but finds that that these records no longer exist and further attempts to obtain them in connection with this appeal would be futile. In cases where the Veteran's STRs are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA also must provide an explanation to the appellant regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court also has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); McCormick v. Gober, 14 Vet. App. 39 (2000). However, given the extensive efforts that were made to obtain these records in conjunction with a prior appeal, the Board finds that it is reasonably certain that these records do not exist and further attempts to obtain them would be futile. Thus a remand to conduct further searches would not be of benefit to the Veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). A VA medical opinion was not obtained in this case. In a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran and his representative contend that he was exposed to radiation during active service. He specifically contends that he participated in atmospheric nuclear testing while assigned to the 933rd Anti-Aircraft Artillery Automatic Weapons Battalion in or near Yokohama, Japan (at his most recent hearing he denied being in Yokohama), while on active service. He contended that he was taken by a U.S. Army truck from his unit in or near Yokohama, Japan, to Hiroshima, Japan, where he witnessed an atmospheric nuclear test. These contentions have remained consistent for the last 25 years. However, in conjunction with a prior appeal, the Defense Threat Reduction Agency (DTRA) confirmed on multiple occasions that the Veteran was not a radiation- exposed Veteran and did not participate in radiation-risk activities during active service. During the course of the prior appeal, VA also obtained the Veteran's radiation dose estimate and his revised radiation dose estimate from the DTRA. DTRA confirmed that the Veteran was not a radiation-exposed Veteran and did not participate in radiation-risk activities during active service. DTRA also confirmed that the Veteran's total in-service radiation dose was 0.0 rem. Accordingly, the Board finds that VA is not required to obtain opinions from the Undersecretary for Health and from the Director, Compensation & Pension Service, concerning the contended etiological relationship between the Veteran's rectal cancer, and his alleged in- service ionizing radiation exposure. See 38 C.F.R. § 3.311. The Veteran has not asserted that rectal cancer was diagnosed in service or within one year of service; instead he has related this to his alleged in-service ionizing radiation exposure. Although the Veteran asserts that his rectal cancer is related to radiation in service, the Board finds, as further noted below, that he was not exposed to radiation during service. As there was no exposure to radiation in service, a medical opinion concerning the relationship of the Veteran's rectal cancer to in-service radiation exposure would be of no benefit. Any such opinion would lack probative value since the evidence does not show that the Veteran was exposed to radiation in service. The Veteran has not alleged any theory for the etiology of his rectal cancer other than exposure to ionizing radiation which would necessitate evaluation by a medical professional. The Board notes that although Veteran submitted a statement from his doctor indicating that his rectal cancer could be associated with his exposure to radiation, this opinion does not rise to the level of an indication of an associated because, as is further discussed below, there is not in-service radiation. A VA medical opinion is thus not necessary in this case. The Board finds that VA satisfied its duties pursuant to the VCAA in connection with this claim. Service connection The Veteran contends that he developed rectal cancer as a result of exposure to ionizing radiation while on active service in the U.S. Army when he was driven from his unit (the 933rd Anti-Aircraft Artillery Automatic Weapons Battalion) in a small town near Yokohama, Japan to Hiroshima, Japan, where he observed an atmospheric nuclear test. His representative also contended that there may have been residual radiation in the vicinity of Hiroshima, Japan, when the Veteran was taken there and allegedly made to dig a trench. He has also contended that he drank contaminated water while stationed in Japan. In the past, he has also claimed that he helped clean up nuclear residue around Hiroshima, Japan, and that he was taken to islands off the coast of Japan where nuclear activities were occurring. Service connection for a disability based upon radiation exposure may be awarded on three different legal bases. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans. See 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, radiogenic diseases may also be service connected. See 38 C.F.R. § 3.311. Third, service connection may be granted when it is established that a disease diagnosed after discharge from service was otherwise incurred during active service, including as a result of exposure to radiation. See 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Under the first basis, a radiation-exposed veteran is a veteran who while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity, which is specifically defined by VA regulation. 38 C.F.R. § 3.309(d)(3)(A)-(E). A radiation risk activity includes onsite participation in an atmospheric detonation test, participation in the occupation of Hiroshima or Nagasaki, Japan, by United States forces from August 6, 1945 to July 1, 1946, internment as a prisoner of war in Japan during World War II from August 6, 1945 to July 1, 1946, and particular service in the Department of Energy. 38 U.S.C.A. § 1112(c)(3); 38 C.F.R. § 3.309(d)(3). If a radiation-exposed Veteran has one of the presumptive diseases contained in § 1112(c)(2), such disease shall be considered to have been incurred in or been aggravated by active service, despite there being no record of evidence of such disease during a period of service. 38 U.S.C.A. § 1112(c). Diseases specific to radiation-exposed veterans are the following: leukemia (other than chronic lymphocytic leukemia), thyroid cancer, breast cancer, cancer of the pharynx, esophageal cancer, stomach cancer, cancer of the small intestine, pancreatic cancer, multiple myeloma; lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), salivary gland cancer, cancer of the urinary tract, bronchio-alveolar carcinoma, bone cancer, brain cancer, colon cancer, lung cancer, and ovarian cancer. 38 C.F.R. § 3.309(d)(2). The pertinent diagnosis here is rectal cancer. Accordingly, there is no disorder eligible for presumptive service connection and the Veteran is not entitled to service connection on this basis. Under the second basis, service connection may be granted where there is exposure to ionizing radiation and the subsequent development of a radiogenic disease within a specified time period. 38 C.F.R. § 3.311(b). Rectal cancer is a radiogenic disease. See 38 C.F.R. § 3.311(b)(2), (4). Thus, proper development must have been conducted. Additional development is required in cases of Veterans who develop a radiogenic disease and attribute it to exposure to ionizing radiation in service. An assessment must be made as to the size and nature of the radiation dose or doses. 38 C.F.R. § 3.31(a). If military records do not establish presence or absence from a site at which radiation exposure is claimed to have occurred, the Veteran's presence at the site will be conceded, and, if radiation exposure in confirmed there are additional procedural requirements. In this case military records clearly show that the Veteran was not present during any nuclear testing, nor is there any evidence that he was exposed to any type of residual radiation while he was in Japan. DTRA reported that the Veteran was not a radiation-exposed Veteran, did not participate in radiation-risk activities during active service, and that the Veteran's total in-service radiation dose was 0.0 rem. Accordingly, the proper development was conducted. The Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for rectal cancer including as due to ionizing radiation exposure. The Veteran's contention has remained consistent over a period of approximately 25 years. His primary claim is that he was exposed to ionizing radiation when he was taken from his unit in or near Yokohama, Japan, to Hiroshima, Japan, where he participated in an atmospheric nuclear test. At his most recent hearing, however, the Veteran denied having been stationed in Yokohama, but agreed that he was stationed near Yokohama. The Veteran's unit morning reports as cited by DTRA confirm his presence with his unit in Yokohama during the applicable period. At times, he contended that this test took place on an island off the coast of Japan that was visible from Hiroshima. The Veteran's service personnel records (SPRs), to the extent that they are available, do not show that he participated in any atmospheric nuclear testing during active service. While the Veteran contends that he participated in nuclear testing near Hiroshima, Japan, DTRA has confirmed that no atomic atmospheric testing was performed in Japan. Rather, the only atomic testing that took place during the Veteran's service was in Bikini Atoll, Marshall Islands, from July 1 to August 31, 1946. This was more than 2,000 nautical miles from Hiroshima. Nor do these records show that the Veteran was a confirmed participant in the occupation of Hiroshima, Japan, as DTRA noted in September 2007 and in March 2009. He arrived in on July 24, 1946, after endpoint of the regulatory definition of participant in the occupation of Hiroshima and Nagasaki, and, in any event, he arrived by ship in Yokohama, Japan (approximately 415 miles from Hiroshima and 580 miles from Nagasaki). But Veteran's SPRs do not show that he participated in a recognized radiation risk activity and was not a radiation-exposed Veteran during active service. Although the Veteran did not participate in a recognized radiation-risk activity and was not a radiation-exposed Veteran during active service, the RO obtained the Veteran's radiation dose estimate from the DTRA in connection with an earlier appeal. The DTRA concluded in September 2007 that the Veteran was not a confirmed participant in the occupation of Hiroshima, Japan, as defined in § 3.309. The DTRA stated that the Veteran's total external gamma dose radiation was 0.0 rem; his upper bound total external gamma dose was 0.0 rem; his total skin dose (hands and feet) beta plus gamma was 0.0 rem; finally, his upper bound total skin dose (hands and feet) beta plus gamma was 0.0 rem. After the Veteran provided an annotated copy of a Scenario of Participation and Radiation Exposure (SPARE) in December 2007. VA subsequently provided the Veteran's annotated copy of the SPARE to DTRA and requested a revised radiation dose estimate based on the information provided by the Veteran. In response, DTRA informed VA in March 2009 that it had reviewed the Veteran's annotated copy of the SPARE. Although the Veteran contended on his annotated SPARE that his arrival date of July 24, 1946, at Yokohama, was false, DTRA noted that the Veteran's own service personnel records showed that he had arrived in Japan on that date. The Veteran also contended that he was transferred to B Battery, 933rd Anti-Aircraft Artillery Automatic Weapons Battalion on July 26, 1946; however, DTRA noted that morning reports from this unit showed that, in fact, he had joined B Battery 4 days later on July 30, 1946. The Veteran further contended that he was not assigned to this unit when it relocated to the vicinity of the Takimi River, Yokohama, on October 22, 1946; however, DTRA noted that morning reports for this unit also indicated that he was assigned to it until May 28, 1947, when he was transferred to another unit for return to the United States. Finally, DTRA noted that the Veteran contended that he had witnessed an atmospheric nuclear test in Hiroshima, Japan, while on active service and had remained in the vicinity of the test until being told to leave the area. DTRA stated that Operation CROSSROADS was conducted at Bikini Atoll, Marshall Islands, from July 1 to August 31, 1946, more than 2,000 nautical miles from Hiroshima. With the exception of Operation CROSSROADS, DTRA stated that no other atmospheric nuclear tests were conducted until 1948 and no atmospheric nuclear testing was ever conducted in Japan. After reviewing the Veteran's annotated copy of the SPARE, DTRA concluded that the radiation dosimetry information provided in September 2007 remained current. Accordingly, the Veteran did not participate in a radiation-risk activity and was not a radiation-exposed Veteran during service. Despite the assertions of the Veteran and his representative, the Board finds that the preponderance of the evidence does not support a finding that the Veteran participated in radiation-risk activities during active service or was a radiation-exposed Veteran. See 38 C.F.R. §§ 3.309, 3.311. Neither the Veteran nor his representative has provided a specific date when he participated in an atmospheric nuclear test in Japan. Instead, as noted elsewhere, the Veteran has asserted that he was taken from his unit in Yokohama, Japan, to Hiroshima, Japan, where he witnessed an atmospheric nuclear test. Such a competent lay assertion is outweighed by the findings by DTRA in September 2007 and in March 2009 that the Veteran was on active service in Japan more than 2,000 nautical miles from Operation CROSSROADS, the only atmospheric nuclear test conducted during his period of active service, and no atmospheric nuclear test was ever conducted in Japan. The Veteran has not asserted participation in Operation CROSSROADS and, as noted, his SPRs do not indicate that he participated in any atmospheric nuclear testing during service. Despite his and his representative's contentions that the Veteran was exposed to residual fallout in Japan or had to drink contaminated water, the Board notes that the Veteran was stationed well away from Hiroshima, his story about being taken to Hiroshima to witness a nuclear test is outweighed by the other evidence of record and in any event a dose estimate was obtained showing 0.0 rem exposure. Because the Veteran did not participate in a radiation-risk activity and was not a radiation-exposed Veteran during active service, the Board finds that service connection for rectal cancer is not warranted on a presumptive service connection basis due to in-service radiation exposure. Accordingly, entitlement to presumptive service connection on this basis is not warranted. Under the third basis, service connection may be established for a disability resulting from diseases or injuries which are present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a), (d). In order to establish service connection, the following must be shown: (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, 1167 (Fed. Cir. 2004). In addition, cancer may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337-38 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions). A layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). A layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Veteran also is not entitled to direct service connection for rectal cancer. It is unfortunate that the Veteran's STRs were lost in the July 1973 fire at the NPRC. The Veteran, however, has not contended that he was treated for rectal cancer in service. He contends that he first developed rectal cancer after service in 1955. Notably, when he first sought service connection for the removal of part of his rectum and of a growth on his rectum in July 2002, he did not refer to it as cancer or any other particular diagnosis, and his treatment records for his more recent bout with rectal cancer in 2006 do not reference any prior episodes of rectal cancer. In any event, even if rectal cancer developed in 1955, that is eight years after service and does not indicate a relationship to service. At his hearing in May 2013 the Veteran specifically denied having any rectal problems in service. The Veteran has not asserted symptom continuity since service discharge. At his hearing he referenced various other unrelated medical problems that he claimed that he had since service. The first record of an actual diagnosis of rectal cancer is in 2006, nearly 60 years after his service; but even the allegation of a diagnosis in 1955 is 8 years post-service discharge. There is no evidence of any relationship between a disease or injury in service and the Veteran's development of rectal cancer many years later. Service connection for rectal cancer is not warranted; presumptive service connection for a chronic disorder is not warranted as there was no diagnosis or allegation of incurrence within one year of service discharge. As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for rectal cancer is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs