Citation Nr: 1416645 Decision Date: 04/15/14 Archive Date: 04/24/14 DOCKET NO. 10-21 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for non-Hodgkin's lymphoma (NHL) as due to ionizing radiation. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nadia Kamal, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The case is now under the jurisdiction of the Roanoke, Virginia RO. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. The Veteran was diagnosed with NHL in 2002. 2. The Veteran did not participate in a "radiation -risk activity" during his active service. 3. The Veteran did not participate in the atmospheric testing of nuclear weapons during service. 4. The Veteran's NHL was not caused by his active service. CONCLUSION OF LAW The criteria for service connection for non-Hodgkin's lymphoma have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist There are two sets of duties applicable to this case. First, VA has a duty to notify and assist claimants in substantiating claims for VA benefits as provided for by the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Second, in claims of service connection based on in-service exposure to ionizing radiation VA has a duty to request radiation dose information, if certain conditions are met. 38 C.F.R. § 3.311(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in August 2007. The letter informed the Veteran of what evidence was required to substantiate the claim and his and VA's respective duties for obtaining evidence. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished in the instant case, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO/AMC has obtained the Veteran's VA treatment and private treatment records, and his service treatment records. Because the Veteran has filed his radiation claim as due to exposure to radiation while performing the duties of an X-ray technician, the RO was required to afford him notice that he should provide any available records concerning his exposure to radiation, including but not limited to his Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), service medical records and other records which may have contained information pertaining to the veteran's radiation dose in-service. After such records are received, they should be forwarded to the Under Secretary for Health, who is responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. The RO requested such records from the Veteran in the August 2007 letter, and this request by the RO satisfies VA's duties under 38 C.F.R. § 3.311. VA has not provided a medical examination with regard to this claim; however, VA did obtain a medical opinion from the Chief Public Health and Environmental Hazards Officer. In determining whether the duty to assist requires that a VA medical examination be provided with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor has a low threshold. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is no question that the Veteran has a current disability, that he was exposed to radiation, and that two private examiners have proposed a possible relationship between the Veteran's NHL and service. However, the VA memorandum opinion from July 2008 is considered to be sufficient competent evidence for the Board to render a decision in this matter. This is because it is the only opinion that squarely addresses the Veteran's dose estimate and why it is not sufficient to establish a relationship between the Veteran's NHL and active service. Consequently, since sufficient competent medical evidence to make a decision in this case already exists, VA has no duty to provide a medical examination. There is also no indication that an actual examination in addition to an informed opinion would have any greater likelihood of substantiating the Veteran's claim. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria Service connection for a disorder claimed as due to radiation exposure during service may be established in three ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996). First, by application of 38 U.S.C.A. § 1112(c) as implemented by 38 C.F.R. § 3.309(d), certain types of cancer will be presumptively service connected for radiation-exposed veterans. Second, enumerated "radiogenic diseases" may be service connected provided that certain conditions set out in 38 C.F.R. § 3.311(b) (2013) are met. Third, service connection may be established on a direct basis, as with any other claimed disability. See also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As a subset of direct service connection, service connection may be presumed for certain chronic diseases, including malignant tumors, if the diseases manifest to a compensable degree within one year of separation from active service; even if not shown during active service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Lymphomas (except Hodgkin's disease) is one of the types of cancers that can be presumptively service connected for radiation exposed Veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d)(1)(x). It is also a radiogenic disease. 38 C.F.R. § 3.311(b)(2) (xxii). For the first category, a "radiation exposed veteran" is a veteran who participated in a "radiation risk activity" during active service. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). A "radiation risk activity" is defined at 38 C.F.R. § 3.309(d)(3)(ii)(A-E). Four of the defined categories are not applicable to the facts of this case; those categories are as follows: Occupation of Hiroshima or Nagasaki, internment as a prisoner of war in Japan during World War II, presence at a gaseous diffusion plant in Paducah Kentucky in 1992, and service, which if performed as an employee of the Department of Energy would qualify the individual as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000. Id. Direct service connection requires that either the evidence establishes three elements or the evidence is at least in equipoise as to three elements. Those elements are: "(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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Analysis The Veteran contends that service connection is warranted for his NHL based on his alleged exposure to ionizing radiation while performing his duties as an X-ray technician during service. VA treatment records document that in 2002 the Veteran was diagnosed with NHL that was treated with multiple cycles of chemotherapy. Records indicate that the NHL recurred on several different occasions, including in 2003 and 2007. The Veteran does not allege that the performance of his official duties was in connection with any ships, aircraft, or other equipment used in direct support of a nuclear test or that during the six months following the official operational period of any atmospheric nuclear test during which he was present at the site or other test staging area to perform official military duties in connection with completion of projects related to the nuclear test including decontamination of equipment used during the nuclear test. Rather, he asserts that he was an X-ray technician, and exposed to small amounts of radiation on a daily basis. The Board notes that radiation exposure has been conceded. However, although radiation exposure has been conceded, the Veteran is not a "radiation-exposed veteran" as defined by 38 C.F.R. § 3.309(d)(3). He did not participate 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 (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. Therefore, service connection cannot be presumptive by application of 38 C.F.R. § 3.309(d). Next the Board turns to 38 C.F.R. § 3.311. That section provides that in all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. § 3.307 or § 3.309, and it is contended that the disease is a result of exposure to ionizing radiation during service, an assessment will be made as to the size and nature of the radiation dose or doses. 38 C.F.R. § 3.311(a)(1). Here, the Veteran was diagnosed with lymphoma more than a year after service. Therefore, his claim was properly referred to the Director of Compensation and Pension Service, who sought an opinion from the Under Secretary of Health. 38 C.F.R. § 3.311(c). In a July 2008 memorandum, the Chief Public Health and Environmental Hazards Officer reviewed the dose estimate of 2.598 rem made by the Commanding Officer of the Naval Medical Clinic. After reviewing the Veteran's history, the Chief Officer noted that even though the cumulative dose was measured to give the Veteran the maximum benefit of the doubt, the dose recorded showed that it was unlikely that the Veteran's NHL could be attributed to his occupational exposure to ionizing radiation while in military service. The Board acknowledges the opinion provided in support of the Veteran's claim by his private physician in April 2010. However, this opinion is essentially based on the fact that the Veteran's lymphomas were diagnosed "earlier in life than most." Moreover, although this physician included the Veteran's measured dose of 2.598 rem in the rationale of his opinion, he merely mentioned the dose. He did not incorporate the data into his conclusion, or include contextual data to show how the level of rem was more significant than as explained by the VA physician in the July 2008 memorandum. The Board notes that among the factors for assessing the probative value of a medical opinion is the examiner's thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The earlier opinion of Dr. Daniel Atienza mentions a possible relationship between NHL and exposure to radiation, but does not indicate that based on his records review, he thinks the Veteran's NHL is related to his exposure to radiation in service. Unfortunately, an opinion expressed in such speculative terms has little or no probative value. Based on the foregoing, the Board finds that service connection is not warranted under 38 C.F.R. § 3.311. As a final matter, the Board will address service connection on a direct basis or as a presumptive chronic disability pursuant to 38 C.F.R. § 3.309(a). The Board notes that the Veteran does not allege that he was treated for lymphoma during service. Rather, his contention has always been that his cancer is due to radiation exposure during service. Moreover, the evidence of record does not show, nor does the Veteran contend, that the Veteran suffered from lymphoma within the year following discharge from service. Therefore, service connection on a direct basis or presumptive basis as a chronic condition pursuant to 38 C.F.R. § 3.309(a) is denied. Regarding the medical treatise evidence referenced by the Veteran's representative, the Court has held that a medical article or treatise, "can provide important support when combined with an opinion of a medical professional," if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998). The medical treatise, [textbook, or article] must provide more than speculative, generic statements not relevant to the appellant's claim but must discuss generic relationships with a degree of certainty for the facts of a specific case. Wallin v. West, 11 Vet. App. 509, 514 (1998). In this case, however, the article submitted by the Veteran was not accompanied by the medical opinion of a medical professional, and does not provide statements for the facts of the Veteran's specific case. For these reasons, the Board finds that the article does not contain the specificity to constitute competent evidence of the claimed medical nexus. See Sacks, 11 Vet. App. at 317; see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996). While the Board does not doubt that the Veteran sincerely believes that his lymphoma is related to his radiation exposure during service, there is no indication that he has specialized training in determining the etiology of lymphoma, to include whether such are related to radiation exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, lymphoma can have many different causes, thereby requiring medical expertise to determine the etiology. In sum, the preponderance of the evidence is against a finding of service connection for non-Hodgkin's lymphoma pursuant to the radiation provisions in 38 C.F.R. § 3.309(d) and 38 C.F.R. § 3.311, pursuant to the presumptive provisions in 38 C.F.R. § 3.309(a) as a chronic disease, and pursuant to direct service connection under 38 C.F.R. § 3.303. Accordingly, the claim is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for NHL, to include as due to ionizing radiation exposure, is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs