Citation Nr: 1342346 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 05-32 243A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for bladder cancer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran, who is the appellant, served on active duty from October 1943 to May 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2004 of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2009, the Veteran appeared at a hearing before a Veterans Law Judge, who has since retired from the Board. In April 2010, the Veteran indicated that he did not want a new hearing before another Veterans Law Judge, who would decide the appeal. In April 2009 and May 2010, the Board remanded the claims for additional development. FINDINGS OF FACT 1. The Veteran was not exposed to ionizing radiation during service. 2. Cancer of the prostate was not affirmatively shown to have had onset during service; cancer of the prostate was not manifested to a compensable degree within one year from the date of separation from service; and cancer of the prostate first diagnosed after service beyond the one-year presumptive period for a malignant tumor as a chronic disease, is unrelated to an injury, disease, or event in service. 3. Cancer of the bladder was not affirmatively shown to have had onset during service; cancer of the bladder was not manifested to a compensable degree within one year from the date of separation from service; and cancer of the bladder first diagnosed after service beyond the one-year presumptive period for a malignant tumor as a chronic disease, is unrelated to an injury, disease, or event in service. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2013). 2. The criteria for service connection for bladder cancer are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2013). 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. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post- adjudication VCAA notice by letters in February 2003 and in January 2007. The Veteran was notified of the evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. Additionally, the Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The notice included the general provisions for the effective date of a claim and the degree of disability assignable. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent there was pre-adjudication notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content-complying VCAA notice after which the claims were readjudicated as evidenced by the supplemental statement of the case in October 2012. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist VA has made reasonable efforts to identify and obtain relevant records in support of the claim. 38 U.S.C.A. § 5103A. The RO has obtained service records, VA records, and private medical records. The Veteran was afforded a VA examination. As the opinion was based on the Veteran's medical history and described the disabilities in sufficient detail so that the Board's decision is a fully informed one, it is adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Exposure to ionizing radiation is addressed separately. Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation, referred to as service connection, if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active naval service. 38 U.S.C.A. § 1110 (wartime service). To establish entitlement to VA disability compensation, service connection, a Veteran must show: (1) a present disability; (2) an in-service incurrence of an injury or disease; and (3) a causal relationship between the present disability and the injury or disease incurred during service, the so called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, different legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 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. This may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also 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. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service there is a presumption of service connection for specific diseases listed as chronic diseases in 38 U.S.C.A. § 1112(a) and 38 C.F.R. § 3.309(a). The specified chronic diseases include malignant tumors, cancers, if the listed chronic disease becomes manifest to a degree of 10 percent within one year from date of separation from service. Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible. Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Competency is distinguished from the credibility and the weight of admissible evidence, which are also factual determinations. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence The service treatment records contain no evidence of treatment or diagnosis of prostate cancer or bladder cancer. After service VA records show that the prostate cancer was diagnosed in the early 1990s and bladder cancer was diagnosed in 1993. In June 2013 on VA examination, the VA examiner expressed the opinion that prostate cancer and bladder cancer were less likely than not incurred in or caused by sun exposure in service as sun exposure is not a known risk factor for prostate cancer or for bladder cancer. Analysis Excluding exposure to ionizing radiation, which is addressed separately, the Veteran asserts that prostate cancer and bladder cancer are related to excessive sun exposure during service. The Veteran does not assert and the service treatment records do not show any treatment or diagnosis of prostate cancer or bladder cancer in service and service connection under 38 U.S.C.A. §1110 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not established. The Veteran does not assert and the evidence does not show that prostate cancer or bladder cancer was noted in service and the provisions of 38 C.F.R. § 3.303(b), pertaining to chronicity and continuity of symptomatology, do not apply, and service connection under 38 C.F.R. § 3.303(b) is not warranted. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (chronicity and continuity of symptomatology apply to a "chronic" disease listed under 38 C.F.R. § 3.309(a) and "noted" in service). The Veteran does not assert and the evidence does not show that prostate cancer or bladder cancer was manifest to a compensable degree within the one-year presumptive period following separation from service. The record shows that the cancers were firsts diagnosed in the early 1990s, more than 40 years after service and well beyond the one year presumptive period ending in 1947 for a chronic disease, such as cancer, a malignant tumor. And presumptive service connection for either prostate cancer or bladder cancer as a chronic disease under 38 U.S.C.A. § 1112(a) and 38 C.F.R. §§ 3.307(a) and 3.309(a) is not established. Although service connection for the claimed cancers is not warranted by affirmatively showing inception in service under 38 C.F.R. § 3.303(a) or by chronicity or by continuity of symptomatology under 38 C.F.R. § 3.303(b) or by presumptive service connection for a chronic disease under 38 U.S.C.A. § 1112(a) and 38 C.F.R. §§ 3.307(a) and 3.309(a), service connection may still be established based on an initial diagnosis after service, when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303(d). The Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Also the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). By case law, cancer is not capable of lay observation and therefore not a simple medical condition. See Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a simple medical condition, but not a form of cancer). The Veteran does assert that the claimed cancers were caused by excessive sun exposure in service, as the statement is an inference based on fact, it is an opinion rather than a statement of fact. As a form of cancer is not a simple medical condition, the Veteran is not competent to offer an opinion on the cause of the claimed cancers. Davidson, at 1316. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the cause of prostate cancer or bladder cancer. Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claims. As the evidence is not admissible, the Board need not reach the credibility of the evidence. As for the Veteran reporting a contemporaneous medical diagnosis, there is no evidence that the cancers were diagnosed before the 1990s. As for symptoms described by the Veteran that later support a diagnosis by a medical professional, no medical professional has attributed prostate cancer or bladder cancer to an injury, disease, or event in service, including sun exposure. The only competent medical evidence of record pertaining to causation or a nexus to service consists of the report of VA examination. The VA examiner expressed the opinion that it was less likely than not that the prostate cancer and bladder cancer were related to sun exposure in service, because sun exposure is not a known risk factor for prostate cancer or for bladder cancer. The opinion of the VA examiner constitutes competent and persuasive medical evidence, which opposes rather than supports the claim that the cancers were caused by excessive sun exposure in service. There is no medical evidence to the contrary. As there is no competent lay or medical evidence favorable to the claims on the material issues of fact, namely, that the claimed cancers first shown after service are related to an injury, disease, or event in service, including sun exposure, service connection under 38 C.F.R. § 3.303(d) is not established. Exposure to Ionizing Radiation Evidence The service personnel records, along with a search of the ship logs by the Defense Threat Reduction Agency (DTRA), show that the Veteran arrived in Sasebo, Japan (approximately 150 miles from Hiroshima and 30 miles from Nagasaki) aboard the USS LST 613 on October 25, 1945, where he stayed until December 4, 1945, and that the ship later returned to Sasebo for eleven days beginning on December 12, 1945. The USS LST-613 then transited to Yokohama, Japan (approximately 400 miles from Hiroshima and 550 miles from Nagasaki) where it remained until decommissioned on February 3, 1946. The Veteran was transferred to USS LST 1005 at Yokohama on that day, and remained at that location until he was transferred for return to the United States on March 24, 1946. A scientific radiation dose assessment for American troops occupying cities in Japan outside Hiroshima and Nagasaki indicates that the Veteran, because of his location at Sasebo and Yokohama, had no potential for exposure to radiation from the strategic bombings of Hiroshima or Nagasaki, the DTRA concluded that the available historical records do not document the Veteran's presence with the American occupation forces in Hiroshima or Nagasaki, Japan. In March 2009, the Veteran testified that his ship, a LST, went to Nagasaki. Analysis Service connection for a disability attributable to radiation exposure during service can be accomplished in different ways. Ramey v. Brown, 9 Vet. App. 40 (1996), aff'd, sub nom. Ramey v. Gober, 120 F. 3d 1239 (Fed. Cir. 1997). There are specific diseases that may be presumptively service connected if manifest in a radiation-exposed veteran. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). The term "radiation-exposed" means a veteran who participated in a radiation-risk activity. The term "radiation-risk activity" includes the occupation of Hiroshima or Nagasaki by United States forces during the period from August 6, 1945, to July 1, 1946. The term "occupation of Hiroshima or Nagasaki by United States forces" means official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan. 38 C.F.R. § 3.309(d)(3). Prostate cancer is not one of the specific diseases, but bladder cancer is. Also a "radiogenic disease," that is, a disease that may be induced by ionizing radiation, which includes any form of cancer, may also be service connected if the evidence shows that: (1) the veteran was exposed to ionizing radiation in service, including on the basis of participation in the American occupation of Hiroshima or Nagasaki, Japan before July 1, 1946; (2) the veteran subsequently developed a radiogenic disease; and (3) the radiogenic disease first became manifest more than five years after service. 38 C.F.R. § 3.311(b). If the three requirements are met, VA will obtain a dose of estimate from the Department of Defense in claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946, and refer the case to VA's Under Secretary for Benefits for further consideration. If any of the three requirements has not been met, service connection for a radiogenic disease under 38 C.F.R. § 3.311 cannot be granted. 38 C.F.R. § 3.311(b)(1)(iii). The purpose of 38 C.F.R. § 3.311 is to relieve a claimant of the burden of having to submit evidence to show that the claimed disease may have been induced by radiation. The provisions of 38 C.F.R. § 3.311 do not create a presumption of service connection, rather establishes a procedure for handling such claims. See Ramey v. Brown, 9 Vet. App. 40 (1996), aff'd, sub nom. Ramey v. Gober, 120 F. 3d 1239 (Fed. Cir. 1997) (38 C.F.R. § 3.311 does not create a presumption of service connection for a radiogenic disease). Direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the claimed diseases were incurred during service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (a task which includes the difficult burden of tracing causation to a condition or event during service). The Veteran asserts that he was exposed to radiation while serving aboard a LST that went to Nagasaki. 38 U.S.C.A. § 1112(c) Under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), prostate cancer is not a presumptive disease associated with exposure to ionizing radiation. Under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), bladder cancer is a presumptive disease associated with exposure to ionizing radiation. After a search of the ship's log, the Defense Threat Reduction Agency concluded that the available historical records do not document the Veteran's presence with the American occupation forces in Hiroshima or Nagasaki, Japan. According to the Defense Threat Reduction Agency, in October 1945, the Veteran's ship arrived in Sasebo, about 150 miles from Hiroshima and about 30 miles from Nagasaki, Japan, that is, not within 10 miles of the limits of the cities. Also in February 1946, the Veteran's ship arrived in Yokohoma, about 400 miles from Hiroshima and about 550 miles from Nagasaki, Japan, that is, not within 10 miles of the limits of the cities. As the evidence does not establish that the Veteran is a radiation-exposed veteran, who participated in a radiation risk activity, such as the occupation of Hiroshima or Nagasaki by United States forces during the period from August 6, 1945, to July 1, 1946, presumptive service connection for bladder cancer under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) is not established. The Veteran has not identified any other potential source of exposure to radiation. 38 C.F.R. § 3.311 Under 38 C.F.R. § 3.311, prostate cancer and bladder cancer are "radiogenic diseases." But the evidence does not show that the Veteran was exposed to ionizing radiation on the basis of participation in the American occupation of Hiroshima or Nagasaki, Japan before July 1, 1946. The Veteran has not identified any other potential source of exposure to radiation. As one of the three requirements of 38 C.F.R. § 3.311 are not met, namely, exposure to ionizing radiation in service on the basis of participation in the American occupation of Hiroshima or Nagasaki, Japan before July 1, 1946, service connection for prostate cancer or bladder cancer as "radiogenic diseases" under 38 C.F.R. § 3.311 cannot be granted. 38 C.F.R. § 3.311(b)(1)(iii). Combee Without proof of exposure to ionizing radiation is service, the Veteran does not qualify either as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) or for special development procedures under 38 C.F.R. § 3.311. The Veteran may still establish service connection with proof of actual direct causation. As already explained, the claimed cancers were: not affirmatively showing to have inception in service under 38 C.F.R. § 3.303(a); chronicity or continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply; presumptive service connection for a chronic disease under 38 U.S.C.A. § 1112(a) and 38 C.F.R. §§ 3.307(a) and 3.309(a) is not shown; and service connection based on an initial diagnosis after service under 38 C.F.R. § 3.303(d) is not shown. The Veteran asserts that he was exposed to radiation while serving aboard a LST that went to Nagasaki, resulting in the claimed cancers. Without a factual predicate of exposure to ionizing radiation in service, the assertion has no probative value, that is, the assertion does not tend to prove a material issue of fact, namely, that the Veteran was exposed to ionizing radiation. For this reason, the Veteran has not met his burden of proof of actual direct causation under Combee. Summary In conclusion, for the reasons and bases articulated the Board finds that the preponderance of evidence is against the Veteran's claims of service connection for prostate cancer and for bladder cancer, considering the applicable theories of service connection, including the Veteran's assertion of exposure to ionizing radiation, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for prostate cancer is denied. Service connection for bladder cancer is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs