Citation Nr: 1333403 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 06-31 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a service connection claim for bladder cancer, claimed as a result of exposure to ionizing radiation. 2. Whether new and material evidence has been received to reopen a service connection claim for right kidney cancer, claimed as a result of exposure to ionizing radiation. 3. Whether new and material evidence has been received to reopen a service connection claim for residual scars secondary to basal cell carcinoma of the nose and right cheek, claimed as a result of exposure to ionizing radiation. 4. Entitlement to service connection for bladder cancer, claimed as a result of exposure to ionizing radiation. 5. Entitlement to service connection for right kidney cancer, claimed as a result of exposure to ionizing radiation. 6. Entitlement to service connection for residual scars secondary to basal cell carcinoma of the nose and right cheek, claimed as a result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). The Veteran had active duty service in the Marine Corps from January 1947 to February 1947 and in the Air Force from October 1947 to July 1970. The Veteran served in the Republic of Vietnam from May 1962 to October 1962 and from November 1965 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Acting Veterans Law Judge at an October 2009 RO (Travel Board) hearing. A copy of that hearing transcript has been associated with the claims file. In March 2010, the Board denied service connection for a chronic right epididymitis, claimed as residual to testicular cancer, and remanded the issues regarding whether new and material evidence had been presented to reopen the claims for service connection for bladder cancer, right kidney cancer, and residual scars secondary to basal cell carcinoma of the nose and right cheek, as a result of exposure to ionizing radiation for additional development. FINDINGS OF FACT 1. A March 2004 rating decision denied service connection for bladder cancer, for cancer of the right kidney, and for residual scars secondary to basal cell carcinoma of the nose and right cheek; notice of the determination, and the Veteran's appellate rights, were issued the same month. The Veteran did not file a notice of disagreement with the determination and did not present material evidence within the applicable appeal period. 2. Evidence added to the record since the March 2004 rating decision relates to an unestablished fact necessary to substantiate the claims of entitlement to service connection for bladder cancer, cancer of the right kidney, and residual scars secondary to basal cell carcinoma of the nose and right cheek. 3. The Veteran was exposed to gamma radiation during service. 4. Bladder cancer is not related to radiation exposure during service. 5. Right kidney cancer is not related to radiation exposure during service. 6. Residual scars secondary to basal cell carcinoma of the nose and right cheek are not related to radiation exposure during service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claims of entitlement to service connection for bladder cancer, cancer of the right kidney and residual scars secondary to basal cell carcinoma of the nose and right cheek. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. The criteria for entitlement to service connection for a bladder disorder are not met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2013). 5. The criteria for entitlement to service connection for right kidney cancer are not met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2013). 6. The criteria for entitlement to service connection for residual scars secondary to basal cell carcinoma of the nose and right cheek are not met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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. The Board is reopening the claims. Accordingly, any error committed with respect to either the duty to notify or the duty to assist with respect to reopening was harmless and will not be further discussed. With respect to service connection, a September 2005 letter did not notify the Veteran or the disability-rating or effective-date elements of a service connection claim and was thus insufficient. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). However, a March 2006 letter notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claims were subsequently readjudicated, most recently in a June 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and service personnel records have been obtained. A May 2010 Personnel Information Exchange System (PIES) response to a request for the Veteran's DD 1141 reflects that all available service records have been associated with the claim file. VA medical treatment records, and private treatment records have been obtained. The Veteran did not identify any additional private/VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). An opinion from the Under Secretary of Health was obtained in April 2013 and an opinion from the Director of Compensation and Pension was provided in May 2013; the Veteran has not argued, and the record does not reflect, that these opinions were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The opinions reflect review of the claim file and the rationales provided are based on objective findings, reliable principles, and sound reasoning. The Veteran was afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the Veterans Law Judge (VLJ) who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the Acting VLJ identified the issues to the Veteran and asked specific questions directed at identifying whether the appellant met the criteria for service connection. Additionally, the Veteran volunteered his history and symptoms since service. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Reopened Claims When the AOJ has disallowed a claim, it may not thereafter be reopened unless new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105. If no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed except as may be provided by regulations not inconsistent with this title. 38 U.S.C.A. § 7105. See 38 C.F.R. §§ 20.200, 20.201, 20.1103. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). A March 2004 rating decision reflects service connection for bladder cancer, right kidney cancer, and residual scars secondary to basal cell carcinoma of the nose and right cheek was denied based in part on a finding that there was no exposure to radiation in service. Notice of the determination, and the Veteran's appellate rights, were issued the same month. No notice of disagreement with the determination was filed. Also, no evidence was received within the appeal period, which would potentially affect finality of the March 2004 rating decision. 38 C.F.R. § 3.156(b); see, e.g., King v. Shinseki, 23 Vet. App. 464, 466-67 (2010); Buie v. Shinseki, 24 Vet. App. 242, 252 (2011). Finally, the provisions of 38 C.F.R. § 3.156(c) do not apply, as VA has not obtained additional relevant service department records since the March 2004 statement of the case. The service records established exposure to ionizing radiation and the service personnel records associated with the claims file in January 2010 are not relevant to the claims. As such, the decision is final. 38 U.S.C.A. § 7105. Nevertheless, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. At the time of the prior decision in March 2004, the record included the service treatment records, statements from the Veteran, and post service medical records. Although the RO denied the claims based on a finding that there was no exposure to radiation in service, the Veteran's service treatment records include a Record of Exposure to Ionizing Radiation indicating that the Veteran was exposed to gamma radiation from March 1960 to August 1961 while serving at the Hickam Air Force Base. The evidence added to the record since the March 2004 rating decision includes an April 2013 memorandum from the Director, Environmental Health Program (DEHP), written for the Under Secretary of Health, reflecting dose estimates for the Veteran's exposure to ionizing radiation during service. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that 38 C.F.R. § 3.156(a) establishes a "low threshold" for reopening. The new evidence cures a prior evidentiary defect determined by the RO. New and material evidence has thus been received since the RO's March 2004 decision; the claims are reopened. The Veteran's appeal is granted to that extent. Entitlement to Service Connection Legal Criteria - Service Connection 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, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Evidence of continuity of symptoms is only for consideration in regard to disorders recognized as "chronic" under 38 C.F.R. § 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Calculi of the bladder and kidney are both listed in the regulation as a chronic disorder. In relevant part, 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). 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 profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. §§ 3.303(d), 3.307, 3.309. Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways, which have been outlined by the Court. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Ruker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not only determine whether a Veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability was otherwise the result of active service. Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, 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), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d). Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and includes all forms of cancer. 38 C.F.R. § 3.311(b)(2). Section 3.311(a) calls for the development of a radiation 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 38 C.F.R. § 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 in 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). 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). Evidence and Analysis The Veteran seeks service connection for bladder cancer, right kidney cancer, and residual scars secondary to basal cell carcinoma of the nose and right cheek. He has limited the appeal to a theory of entitlement based on exposure to ionizing radiation during service. Transcript at 11(2009). A January 1947 Marine Corps entrance examination and a February 1947 discharge examination were negative for any relevant abnormalities. His remaining service treatment records for this period of service were negative for any complaints, treatments or diagnoses of any bladder cancer, right kidney cancer, or basal cell carcinoma. An October 1947 Air Force entrance examination was negative for any relevant abnormalities. A February 1970 discharge examination was negative for any relevant abnormalities and the Veteran denied any significant medical or surgical history not disclosed during the discharge examination. His remaining service treatment records for this period of service were negative for any symptoms, treatments or diagnoses of bladder cancer, right kidney cancer, or basal cell carcinoma. An undated Record of Exposure to Ionizing Radiation indicated that the Veteran was exposed to gamma radiation from March 1960 to August 1961 while serving at the Hickam Air Force Base. His dosage total was "+15." During his October 2009 hearing, the Veteran testified that he had loaded retrograde cargo from Johnson Island for transport to Johns Hopkins Hospital in Minnesota in 1955. This cargo had not been used in the testing but had been left over. He transported this cargo on four or five occasions while serving with the Military Airlift Command and had used a dosimeter. The Veteran personally believed that cancer of the bladder, right kidney, and skin cancer was due to radiation exposure. Initially, bladder cancer, right kidney cancer, and basal cell are not diseases for which presumptive service connection is warranted. Rather, bladder cancer, right kidney cancer, and skin cancer (basal) are diseases that may be induced by ionizing radiation. The provisions of 38 C.F.R. § 3.311(b)(1)(iii) were complied with in obtaining an opinion from the Under Secretary for Benefits with regard to disabilities on appeal for which service connection is sought. An April 2013 report from the Director, Environmental Health Program (DHEP), written for the Under Secretary of Health, notes the following: 1. [ Omitted ] 2. The Veteran, who was born in 1929, was diagnosed with right renal cell carcinoma in 2002, transitional cell carcinoma of the bladder in 1994, and skin cancer (basal cell carcinoma of the skin) in 1998. The service record contains a NEAC Form 85 indicating exposure to ionizing radiation from 1960 to 1961 for an accumulative total dose of 15 r. The Veteran claims that exposure to ionizing radiation is the cause of his cancers. 3. The Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) was used to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's cancers (This program is available on the Internet at https://www.niosh-irep.com/). For purposes of calculation, the Veteran's radiation doses were assumed to have been received as a single acute dose in the earliest year of exposure (1960). This assumption would tend to increase the probability of causation as calculated by IREP. The program calculated a 99th percentile value for the probability of causation of 13.08% for renal cell carcinoma, 13.13% for bladder cancer, and 30.79% for basal cell carcinoma of the skin. The total probability of causation for the 3 primary cancers is 47.74% (see attachment). 4. In view of the above, it is our opinion that it is unlikely that the Veteran's renal cell carcinoma, bladder cancer, and/or basal cell carcinoma of the skin can be attributed to ionizing radiation exposure while in military service. In May 2013, the Director of Compensation and Pension stated that the Veteran was 30 years old when exposed to ionizing radiation. It was noted that bladder cancer was diagnosed 34 years after exposure to ionizing radiation; basal cell carcinoma was diagnosed 38 years after exposure to ionizing radiation; and renal cell carcinoma was diagnosed 41 years after exposure to ionizing radiation. Based on the April 2013 opinion and review of the evidence, the opinion was that there is no reasonable possibility that the Veteran's bladder cancer, renal cell carcinoma, or basal cell carcinoma were the result of his radiation exposure during service. The competent medical evidence of record is insufficient to establish service connection for the Veteran's currently diagnosed bladder cancer, right kidney cancer, or skin cancer of the nose and cheek. His February 1970 discharge examination was negative for any relevant abnormalities. No competent medical opinion has been submitted suggesting a nexus between these conditions and service. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Board finds at this time that the April 2013 medical opinion cited above clearly meets all three criteria cited in Nieves-Rodriguez and may accordingly be relied upon by the Board. The Veteran is competent to report his symptoms during service, to include having had an upset stomach and vomiting after handling radioactive materials during service. He is not competent, however, to opine as to the etiology of his current bladder cancer, right kidney cancer, or skin cancer on the nose and cheek. While a layperson can provide evidence as to some questions of etiology or diagnosis, the question of a medical relationship between his these cancers and service, which would require more than direct observation to resolve, is not in the category of questions that lend themselves to resolution by lay observation. Cf. Jandreau and Barr, both supra; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Thus, the Veteran is not competent to opine on this question, and his statements asserting a relationship between his bladder cancer, right kidney cancer, or skin cancer and service are not probative as to this question. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In reaching a determination, the Board has accorded significant probative value to the April 2013 opinion from DEHP and the May 2013 opinion from the Director of Compensation and Pension. The opinions are consistent with the record and the rationales provided are based on objective findings, reliable principles, and sound reasoning. Such is far more probative than the Veteran's remote lay assertions. The preponderance of the evidence is against the claims; there is no doubt to be resolved. Service connection for bladder cancer, right kidney cancer, and residual scars secondary to basal cell carcinoma of the nose and right cheek as a result of exposure to ionizing radiation during service is not warranted. ORDER Service connection claim for bladder cancer is denied. Service connection claim for right kidney cancer is denied. Service connection for residual scars secondary to basal cell carcinoma of the nose and right cheek is denied. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs