Citation Nr: 1328598 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 08-38 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for residuals of a colon disorder, 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 James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from July 1958 to July 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2007 and February 2008 rating decisions of the Department of Veterans Affairs (VA) regional office (RO) located in Los Angeles, California which, in part, denied service connection for residuals of colon cancer and for residuals of prostate cancer, to include as due to radiation exposure. FINDINGS OF FACT 1. The Veteran did not incur prostate cancer in service and this disorder is not due to exposure to ionizing radiation in service. 2. The Veteran has a colon disability that is related to conceded in-service radiation exposure. CONCLUSIONS OF LAW 1. Service connection for prostate cancer is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.311 (2012). 2. Resolving doubt in favor of the Veteran, service connection for residuals of a colon disorder is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Given the favorable disposition of the claim for service connection for residuals of a colon condition, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Regarding the Veteran's claim for prostate cancer, the RO provided notice to the Veteran in a May 2006 letter prior to the date of the issuance of the appealed April 2007 and February 2008 rating decisions. The May 2006 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. With respect to the claim for prostate cancer, a dose estimate was obtained, as well as medical information from the Chief Public Health and Environmental Hazards Officer. In April 2013, a VHA medical opinion was provided based on a review of the claims file and a VA addendum opinion was provided. As the VHA examiner thoroughly addressed the relevant issues, and provided a rationale for the conclusions provided, the Board concludes that the examination was adequate. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See 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. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d) (3) as a veteran who, while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean 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 in Japan (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)(i), (ii). First, 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). Second, 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a) (2). In all other claims involving radiation exposure, a request will be made for any available records concerning the veteran's exposure to radiation. These records normally include but may not be limited to the veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). Pursuant to 38 C.F.R. § 3.311 , "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes the following: all forms of leukemia, except chronic lymphocytic leukemia; thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2)(i)-(xxiv). Section 3.311(b)(5) requires that bone cancer become manifest within 30 years after exposure, posterior subcapsular cataracts become manifest within 6 months or more after exposure, leukemia become manifest at any time after exposure, and that other diseases specified in section 3.311(b)(2) become manifest 5 years or more after exposure. Third, and notwithstanding the above, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee, 34 F.3d at 1043-1044. Thus, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether his disability is otherwise the result of active service. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Prostate Cancer Out the outset of this discussion, the Board notes that the Veteran has been diagnosed with adenocarcinoma of the prostate. Thus, there is no question that he has a history of prostate cancer. However, considering the evidence of record in light of the above-noted legal authority, the Board finds that the claim for service connection for prostate cancer, claimed as due to exposure to ionizing radiation, must be denied. As indicated, the first method for establishing service connection is not applicable in this case as prostate cancer is not listed among the diseases recognized as warranting presumptive service connection under 38 C.F.R. § 3.309(d). Addressing the second method by which service connection may be established, the Board notes that the VA Undersecretary for Benefits has not determined that a relationship in fact exists between the Veteran's prostate cancer and his exposure. As indicated, the Veteran's service personnel records reflect that he participated in Operation Dominic I, which consisted of 36 atmospheric nuclear tests conducted at the Pacific Proving Ground in 1962. As the Veteran participated in a radiation-risk activity (as defined by 38 C.F.R. § 3.309(d)(3)), the Veteran is considered a radiation-exposed veteran. In February 2007, the Defense Threat Reduction Agency (DTRA) provided a radiation dose estimate in compliance with 38 C.F.R. § 3.311(a)(2)(i), based on a detailed review of the facts and circumstances specific to the Veteran's service-including the Veteran's own description of his service. The doses which the Veteran could have received during his participation in Operation Dominic I were determined to be not more than 18 rem external gamma dose; 0.5 rem external neutron dose; 4.5 rem internal committed dose to the prostate (alpha); and 2 rem internal committed dose to the prostate (beta plus gamma). Pursuant to 38 C.F.R. § 3.311(b), when a veteran exposed to ionizing radiation subsequently develops a radiogenic disease that manifests within a specified time period, and claims service connection based on such exposure, "before its adjudication the claim will be referred to the Under Secretary for Benefits for further consideration." 38 C.F.R. §§ 3.311(b)(1)(i), (ii), (iii). The Veteran's prostate cancer manifested more than five years after exposure and so falls within the specified time period. 38 C.F.R. § 3.311(b)(5)(iv). The Board acknowledges that the RO did not obtain a formal medical opinion regarding whether the Veteran's prostate cancer is related to his in-service radiation dose. That is because the Chief Public Health and Environmental Hazards Officer in a December 2006 memorandum set forth guidelines for screening radiation cases meeting specific criteria. The VA Compensation and Pension (C&P) Service followed these guidelines in preparing a VA C&P worksheet, which was used to convert the Veteran's aforementioned prostate screening dose assessments, based on gamma/beta radiation, to an estimate based on neutron and alpha radiation. The Veteran's adjusted total prostate radiation dose was determined to be 40 rem. According to the Chief Public Health and Environmental Hazards Officer and C&P guidelines, such a dose level carried less than a 50 percent probability of causing prostate cancer. The C&P guidelines worksheet also indicated that "[a]ll Pacific Proving Ground [PPG ] cases involving Veterans whose prostate cancers were diagnosed 25 or more years after exposure and/or who were exposed at age 25 or more have adjusted total prostate doses less than the applicable screening doses" and therefore it was "unlikely that prostate cancer in these PPG Veterans c[ould] be attributed to exposure to ionizing radiation in service." As the Veteran in this case was noted to be 23 years old at the time of his in-service radiation exposure at the PPG and did not develop prostate cancer until 42 years later, his cancer was determined to be less likely than not due to that radiation exposure. Turning to third method of establishing service connection, the Board notes that the Veteran's service treatment records do not contain any complaints, findings, or diagnoses related to prostate cancer. The Veteran's cancer was not diagnosed until several decades after service, and the only theory put forth for relating such disability to service is his exposure to ionizing radiation. As discussed in detail above, however, the most probative and persuasive evidence in the claims file in the form of the guidelines provided by the Chief Public Health and Environmental Hazards Officer weighs strongly against such a link. Furthermore, in January 2013 the Board solicited an expert medical opinion from a VHA medical expert. Although that expert did provide an opinion that the Veteran's claims colon disability was at least as likely as not related to ionizing radiation, the VHA expert noted that the situation with respect to prostate cancer "was somewhat different". He noted that VA did not recognize prostate cancer in a radiation exposed veteran as being likely due to the radiation exposure as it did colon cancer. Indeed, the expert explained studies of Japanese citizens exposed at Hiroshima and Nagasaki showed little or no increase in prostate cancer risk. The lifetime risk of men in this country currently stood at one in six, which was a very common disease in the general (no radiation exposure) population. Statistically, the Veteran's prostate cancer was much more likely due to the same effects that were in play in all other men in this country rather than his radiation exposure. The VHA expert noted that it was his opinion that VA was correct in its thinking that prostate cancer in a radiation exposed veteran is not likely due to the exposure. Thus, the most competent medical evidence of record clearly weighs against granting service connection for prostate cancer. For all the foregoing reasons, service connection for prostate cancer, claimed as due to exposure to ionizing radiation, must be denied. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for a Colon Disorder Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that the service connection for a colon disorder to include as due to exposure to ionizing radiation is warranted. While the Veteran filed a claim for colon cancer based on exposure to radiation, the April 2013 VHA examiner specifically determined that the Veteran had colon adenomas. They were described as tubulovillous adenomas with severe dysplasia. The VHA expert explained that while colon adenomas are not colon cancer, they were clearly a colon cancer precursor, a step along the developmental pathway to overt colon cancer. Histologic factors suggest that a particular adenoma is further along the line toward becoming a colon cancer include villous changes and the degree of dysplasia. As the dysplasia becomes more pronounced, the epithelial cells look less like normal cells and more like malignant cells. The line between severe dysplasia and the earliest stage of colon cancer can be quite thin. The VHA expert opined that since colon adenomatous polyps were a step along to the evolution of colon cancer, it was fair to say that colon cancer and adenomatous polyps share a common cause. If the VA has concluded that colon cancer in a radiation-exposed Veteran is presumed to be related to the radiation exposure, then it is only logical to extend the same cause to the Veteran's tubulovillous adenomas with severe dysplasia. The VHA expert did note that the residual risks of colon cancer and adenomatous polyps were different as the diagnosis of adenomatous polyps did not carry with it the same risks that a diagnosis of colon cancer did. Adenomatous polyps were not yet malignant and did not carry a risk of metastasizing. The diagnosis of adenomatous polyps did mean that the patient should have colonoscopies performed more often. Finding and removing adenomas prevents the progression to colon cancer and thereby changes the natural history of the disease. The VHA expert concluded that the Veteran's colon polyps should be considered related to his radiation exposure though the residual risks from adenomatous polyps are different from the residual risks from colon cancer. Significantly, the VHA examiner's opinion is not contradicted by any other medical evidence or opinion. Therefore, the April 2013 VHA expert provides the only competent medical opinion as to the relationship between the Veteran's current colon disability and the Veteran's conceded in-service radiation exposure. As a final point, the Board notes that while VA obtained dose estimates of radiation from the DTRA in February 2007, such dose estimates were obtained using the screening method for prostate cancer claims, and it is unclear whether such dose estimates would be applicable to the claim for a colon disorder. Also, VA did not obtain a medical opinion from the Under Secretary for Health, through the Chief Public Health and Environmental Hazards Officer, concerning the relationship between the Veteran's colon disability and his exposure to radiation in service in accordance with 38 C.F.R. §3.311(a)(2)(iii). However, in light of the fact that the Veteran clearly engaged in a radiation-risk activity in service, and that there is a detailed VHA opinion of record explaining why the Veteran's colon disorder should be considered related to his radiation exposure, the Board finds that service connection is warranted on a direct basis as contemplated by Combee. Under such circumstances, undertaking further development under the provisions of 38 C.F.R. § 3.311 is unnecessary and would only needlessly delay adjudication of the claim. ORDER Entitlement to service connection for residuals of a colon disorder, to include as due to exposure to ionizing radiation is granted. Entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs