Citation Nr: 1732403 Decision Date: 08/10/17 Archive Date: 08/23/17 DOCKET NO. 95-37 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an effective date earlier than March 26, 2002 for the award of service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. WITNESSES AT HEARING ON APPEAL Appellant, her son, and S.V. ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran had active service from July 1951 to July 1955. He died in April 1992. The appellant is the Veteran's surviving spouse. This appeal originally came before the Board of Veterans' Appeals (Board) on appeal of an August 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts that denied service connection for the cause of the Veteran's death and also denied eligibility for accrued benefits. The appellant testified at a hearing before a RO Hearing Officer in April 1996. A transcript of that hearing is associated with the claims file. The Board issued a decision in October 1997 denying the claim for entitlement to service connection for the cause of the Veteran's death and entitlement to accrued benefits. The appellant appealed the Board's decision to the United States Court of Veterans Claims, known after March 1, 1999 as the United States Court of Appeals for Veterans Claims (Court). In February 2001, the Court granted a Joint Motion of Remand (JMR), vacated the Board's October 1997 decision, and remanded the case to the Board. In August 2001, the Board remanded the case for further development. In November 2003, the RO issued a rating decision granting service connection for the cause of the Veteran's death effective from March 26, 2002, the effective date of a liberalizing regulation making colon cancer a disease subject to presumptive service connection based on exposure to ionizing radiation. The appellant contends an earlier effective date should be assigned. In April 2007, the Board issued a decision again denying the claims for an earlier effective date and entitlement to accrued benefits. The appellant again appealed to the Court, and in September 2008 another JMR was issued vacating the April 2007 Board decision and remanding the claims back to the Board. In May 2009, the Board issued a decision that again denied entitlement to accrued benefits. The claim for an earlier effective date for the award of service connection for the cause of the Veteran's death was remanded in the May 2009 decision and again in February 2011, February 2014, and November 2015 for development in compliance with the Court's September 2008 Order. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran died in April 1992 of cardiorespiratory failure due to metastatic colon cancer. 2. The liberalizing change to 38 C.F.R. § 3.309(d)(2), adding (xix) cancer of the colon, was effective March 26, 2002. 3. Without resort to the presumption provided in 38 C.F.R. § 3.309(d)(2)(xix), the preponderance of the probative evidence establishes that the Veteran's colon cancer was first demonstrated many years after service and is not etiologically related to an in-service disease or injury, including radiation exposure. CONCLUSION OF LAW The criteria for an effective date earlier than March 26, 2002 for dependency and indemnity compensation (DIC) are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137, 5103, 5103A, 5107, 5110(g) (West 2014); 38 C.F.R. §§ 3.114(a), 3.303, 3.307, 3.309, 3.311, 3.400(p) (2016); 67 Fed. Reg. 3612, 3615 (January 25, 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has also complied with the remand orders of the Board and the parties' September 2008 JMR. In response to the JMR and the Board's implementing remands, VA obtained an updated dose assessment of the Veteran's exposure to radiation during active duty service, to include an estimate of the internal dose to the colon. The Defense Threat Reduction Agency (DTRA) provided the updated dose estimate in March 2012. In April 2016, the Director of Compensation Services requested the Under Secretary of Health (USH) review the claims file, including the March 2012 dose assessment, and issue an opinion as to the likelihood the Veteran's colon cancer with metastasis to the lung and sacrum resulted from exposure to radiation in service. The Director's request for an opinion noted that the Veteran was a participant in Operation IVY, a two-detonation atmospheric nuclear test conducted at Enewerak Atoll in November 1952. The Director also specifically referenced the Board's November 2015 remand instructions and acknowledged that the appellant did not agree with a July 2006 Scenario for Participation and Radiation Exposure (SPARE) compiled by the DTRA. The Director also asked the USH to determine the accuracy of the July 2006 dose estimate and reconcile it with the more recent and higher dose estimate dating from March 2012. In June 2016, health physicist/Deputy Chief Consultant of the Post Deployment Health Services for the Under Secretary issued a medical opinion on behalf of the USH. The health physicist estimated the likelihood the Veteran's cancer was due to ionizing radiation at 30.01 percent and concluded there was no reasonable possibility of a relationship between the Veteran's cancer and radiation exposure. This finding was calculated based on the Interactive RadioEpidemiological Program (IREP) as provided by the National Institute for Occupational Safety and Health (NIOSH). The VA health physicist noted that while the July 2006 dose estimate was a more accurate indicator of the Veteran's radiation exposure based on his in-service activities, the expressed opinion was based on the higher dose estimate issued in March 2012. The March 2012 DTRA estimate was utilized to provide the benefit of the doubt to the Veteran and take into consideration the appellant's objections to the July 2006 SPARE. The Director of Compensation Services also issued an opinion in June 2016 finding that there was "no reasonable possibility" that the Veteran's colorectal cancer with metastasis to the lung and sacrum was due to ionizing radiation exposure while in service. This opinion was based on the June 2016 findings of the USH, the March 2012 DTRA dose estimate, and the contents of the claims file. The June 2006 opinions from the USH and the Director of Compensation Services address the discrepancy between the July 2006 and March 2012 dose estimates, are based on the updated and higher March 2012 dose estimate, and utilize the standard requested by the Board's remand, specifically, whether "there is no reasonable possibility that the Veteran's disease resulted from radiation." The Board therefore finds that the June 2016 Director's assessment is adequate and complies with its remands and the September 2008 JMR. The case was then readjudicated in a June 2016 supplemental statement of the case (SSOC) and VA has complied with the remand orders of the Board, the September 2008 JMR, and the duty to assist the appellant. Earlier Effective Date Claim Factual Background Because of the complex factual and procedural nature of this case, the Board finds that a review of the relevant history will prove helpful. The Veteran filed a claim for entitlement to service connection for colon cancer in September 1991. He died seven months later in April 1992, at the age of 60. The death certificate lists the cause of death as cardiorespiratory failure due to metastatic cancer. The appellant's claim for DIC was received in April 1992. A 1952 certificate issued jointly by the Army, Navy, Air Force, and Atomic Energy Commission, confirms that the Veteran participated in Operation Ivy and was stationed at Kwajalein Atoll, part of the Marshall Islands, in September 1952. A May 1992 statement from the National Personnel Records Center (NPRC) indicates that the Veteran's service records may have been destroyed by fire. However, the claims file contains the report of the July 1955 examination for separation from service, which showed that the Veteran's bodily systems, including his rectum and anus, were normal. No cancer was reported on that examination. Extensive private clinical records are of record. A November 1986 private surgical report notes that a circumferential sessile lesion consistent with cancer was detected upon sigmoidoscopy. In December 1986, the Veteran underwent low anterior resection to remove the cancer, and was thereafter treated with radiation beginning in January 1987. In September 1989, the Veteran underwent a colonoscopy, and a splenic flexure polyp was removed which was positive for rectal adenocarcinoma. Adenocarcinoma with ulceration was diagnosed on private biopsies in November 1991. The Veteran was subsequently hospitalized in December 1991 and January 1992 for status post rectal carcinoma, widely metastatic with lung metastasis and significant local spread. A history of chemotherapy and radiation treatment to the sacral and pelvic region in 1991 was noted, and transurethral resection of the prostate in August 1991. A chest X-ray revealed two large nodules with no acute infiltrates. The Veteran was treated for iron deficiency secondary to gastrointestinal blood loss secondary to rectal carcinoma, and for Staphylococcus bacteria growing in his urine. He was counseled on the end-stage nature of his cancer, and he elected to not be resuscitated in the event of cardiopulmonary failure. Private chest X-ray studies in December 1991 and January 1992 revealed increasingly large right-sided pulmonary nodules, which were consistent with metastatic colon cancer. The Veteran was again admitted to a private hospital in January 1992 with a fungating, non-painful mass in the rectal area, and stool positive for occult blood. Many polyps, as well as gram negative rods and gram positive cocci were found. He was released to home and passed away on April [redacted], 1992. In a June 1992 letter, the Veteran's private physician summarized the course of the Veteran's terminal disease process from the initial detection of occult blood positive stools in September 1986; the low anterior resection for colorectal adenocarcinoma in December 1986; a post-operative course of radiation treatment completed in March 1987; the diagnosis of lung metastases on chest X-rays in August 1991; to the discovery of the large sacral recurrence of a tumor, with subsequent chemotherapy treatment. As part of the development for the initial claim for DIC, VA obtained an estimate of the Veteran's radiation dose in April 1995 as well as opinions from the USH and Director of Compensation Services in July 1995 and August 1995, respectively. In April 1996, the appellant submitted evidence in support of her claim consisting of buddy statements, treatise evidence discussing the effects of low level radiation exposure, internal radiation exposure, and December 1995 opinions from a health physicist and also the director of the nonprofit organization, Radiation and Public Health Project. The health physicist, Dr. Morgan, noted that he had worked with the Department of the Navy in measuring radiation associated with nuclear testing in the Bikini Atolls. Dr. Morgan recalled that the instruments used to measure radiation doses at that time were inadequate and he and other scientists found large dose exposure while surveying naval vessels and islands in the South Pacific. Dr. Morgan further noted that the Navy did not measure beta radiation and the amount of radiation exposure associated with early fallout was much higher than that associated with older fallout. The health physicist also noted that no efforts were made to estimate the amount of radiation in food provided to servicemen, despite the colon being a "well known" sensitive target for such internal exposure. As noted above, service connection for the cause of the Veteran's death was initially denied in an October 1997 Board decision. The Veteran appealed the denial of the claim to the Court and the October 1997 Board decision was vacated and remanded by a February 2001 JMR. After the JMR was issued, the appellant submitted an October 2001 private medical opinion from a neuro-radiologist, Dr. Bash, finding that the Veteran's colon cancer and subsequent death were the result of external and internal radiation exposure. Dr. Bash determined that the Veteran had a "worse-case situation" external radiation dose based on the December 1995 statement from Dr. Morgan. Dr. Bash also found that the Veteran likely had a significant internal dose of radiation to his colon from ingested radioactive fallout; exposure that was not considered in the April 1995 Defense Nuclear Agency (DNA) dose assessment. In January 2002, the provisions of 38 C.F.R. § 3.309 pertaining to radiation-exposed veterans was revised, adding colon cancer to the list of presumptive diseases. Service connection for the cause of the Veteran's death was subsequently granted in a November 2003 rating decision effective from March 26, 2002, the effective date of the liberalizing regulation making colon cancer a disease subject to presumptive service connection based on exposure to ionizing radiation. The appellant contends an earlier effective date should be assigned as service connection for the cause of the Veteran's death is warranted under a basis other than the addition of colon cancer to the list of presumptive diseases for radiation-exposed veterans. In other words, the appellant argues the Veteran met the criteria for an award of service connection for colon cancer prior to the expansion of the presumptive criteria under 38 C.F.R. § 3.309 and the effective date should have been assigned under different regulations. First, the Board finds that an earlier effective date is not possible in this case based on the regulations specifically governing the assignment of effective dates for an award of service connection based on a liberalizing law. Service connection for the Veteran's colon cancer was granted in the November 2003 rating decision as a disease presumptively associated with exposure to radiation. See 38 U.S.C.A. § 1112 (c); 38 C.F.R. § 3.309(d). Presumptive service connection means, in essence, that since the Veteran was exposed to radiation during active duty service and later developed colon cancer, no other evidence is required and service connection for colon cancer as the cause of his death was warranted. Colon cancer was previously not on the list of diseases specific to radiation-exposed veterans, but was added effective March 26, 2002. This was accomplished by publication in the Federal Register, appearing at 67 Fed. Reg. 3612, 3615 (January 25, 2002). That change added part (xix), cancer of the colon, to the list of cancers which are presumed service-connected in a radiation exposed veteran. The law and implementing regulations are clear that when there is a liberalizing change in the law or regulations, the new benefits granted under the liberalizing change cannot be effective any earlier than the regulatory change itself. 38 U.S.C.A. § 5110 (g); 38 C.F.R. §§ 3.114(a), 3.400(p). Since service connection for the cause of the Veteran's death was granted under the new provisions of subsection 3.309(d), as a matter of law, benefits cannot be effective earlier than the effective date of the new regulations. Consequently, an effective date earlier than March 26, 2002, for DIC cannot be granted under the specific regulations pertaining to the award of benefits in this case. The analysis does not end here, however, as the Board must now determine whether the evidence establishes service connection for the cause of the Veteran's death on any basis other than the addition of colon cancer as a presumptive disease in 38 C.F.R. § 3.309(d). If a different basis is identified for the grant of service connection for fatal colon cancer as, an earlier effective date may be possible. The Board will first review the criteria pertaining to service connection and DIC benefits generally before addressing the specific bases for an award of service connection based on radiation exposure in this case. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). DIC benefits are payable to the surviving spouse of a veteran if the Veteran died from a service-connected disability. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310 ; 38 C.F.R. § 3.312. Service connection for disorders claimed to be due to exposure to ionizing radiation in service can be established in a number of different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker 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). In this case, service connection for colon cancer was eventually established under this method based on the addition of colon cancer to the list of presumptive diseases in 38 C.F.R. § 3.309(d). A second method provides for an award of service connection 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 by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions or special procedures. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Turning to the second and third method of establishing service connection described above, colon cancer is a "radiogenic disease" for purposes of VA disability compensation benefits under 38 C.F.R. § 3.311 at both the present and when the Veteran filed his claim. 38 C.F.R. § 3.311(b)(2)(x). Therefore, the special development procedures provided in 38 C.F.R. § 3.311 apply to this claim as long as there is evidence that the Veteran was exposed to ionizing radiation during service. The Board finds that the Veteran was clearly exposed to ionizing radiation during active duty; information received from the DNA in April 1995 and the DTRA in July 2006 and March 2012 confirms that the Veteran participated in Operation IVY, conducted at the Pacific Proving Ground in 1952 consisting of the land and waters around Eniwetok and Bikini atolls. The Veteran's personnel records and the 1995, 2006, and 2012 DNA/DTRA reports clearly show that the Veteran served on Kwajalein Atoll from September 1952 to December 1952 attached to Task Unit 132.4.1 (Test Support Unit) of the Air Force Task Group and served as an apprentice cook. He was assigned to tent "P-1" with five other individuals. His permanent unit during this time was the 4930th Test Support Group based out of Kirtland Air Force Base in New Mexico. The record also contains several dose estimates establishing that the Veteran was in fact exposed to ionizing radiation through his service at Kwajalein Atoll in 1952 and the special development procedures listed in 38 C.F.R. § 3.311 apply to this claim. The appellant does not agree with the history provided by the DNA and DTRA exposure scenarios and dose assessments. Specifically, she contends that the Veteran served on Eniwetok Atoll during Operation IVY (the location of nuclear testing) and was therefore exposed to a much higher level of ionizing radiation than estimated in the 1995, 2006, and 2012 dose assessments. The September 2008 JMR stated that the Board must determine whether the Veteran was stationed at Eniwetok Atoll and whether the July 2006 dose estimate is accurate. With respect to the first issue in the JMR, as found by the Board in its May 2009 remand, the evidence of record does not establish that the Veteran was stationed at or visited Eniwetok Atoll during his participation in Operation IVY in 1952. The contemporaneous certificate of participation in Operation IVY issued to the Veteran in 1952 has a commemorative entry on the reverse dated on September 4, 1952, showing the Veteran was in Tent P-1 on Kwajalein; the entry is signed by the Veteran and five other persons. The Veteran told the appellant he was placed on Eniwetok with seven other persons as "human guinea pigs" and that these persons had to scramble to the top of a platform to avoid the tidal waves following the detonation, but detailed research incorporated into the July 2006 DTRA Radiation Dose Assessment Report could not verify that the Veteran was anywhere other than with his unit, which according to all existing records was in Kwajalein through the operation. Furthermore, the Veteran never asserted to VA during his lifetime that he was on Eniwetok; he simply asserted in his claim that he was in the Marshall Islands. The appellant and the Veteran's son assert the Veteran told them that he was actually on Eniwetok during a detonation, but the Board is not required to accept a veteran's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). The Board therefore finds that the objective evidence of record, including the Veteran's service and personnel records, outweighs the lay statements from the appellant and her son and establish that the Veteran was stationed on Kwajalein Atoll in 1952 and was not present on Eniwetok at any time his period of military service. The Veteran was stationed at Kwajalein Atoll from September to December 1952 and was exposed to ionizing radiation after the November 1 and November 16, 1952 detonation of nuclear shots MIKE and KING; therefore, he was exposed for approximately one month until his departure from Kwajalein Atoll on December 5, 1952 . Evidence of radiation exposure, by itself, however, is not sufficient to award service connection. Rather, there must be some indication that the Veteran's colon cancer was somehow related to in-service exposure to ionizing radiation. See Shedden, 381 F.3d at 1167; 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.311(a) and (b), special development is necessary in cases with a radiation-exposed veteran to include the preparation of a dose estimate and an advisory opinion from the USH. Upon RO request, in April 1995 the DNA confirmed that the Veteran was stationed on Kwajalein as part of a test support unit during Operation IVY. The agency further reported that Operation IVY consisted of nuclear test explosions MIKE, on November 1, 1952, and KING, on November 16, 1952, both detonations taking place at Eniwetok Atoll approximately 370 nautical miles northwest of Kwajalein. The agency reported that the Veteran remained stationed at Kwajalein between September and December, 1952. Though actual exposure data was not available due to inability to locate film badge data for the Veteran, the DNA reconstructed the Veteran's potential ionizing radiation exposure and determined that he was exposed to no measurable amount of initial radiation, that he was exposed to an external dose of 0.1 rem gamma radiation with an upper bound of 0.1 rem, that he was exposed to 0 rem neutron radiation, and that he was exposed to a 50- year committed-dose-equivalent of internal radiation to the colon of less than 0.15 rem. In addition to the April 1995 DNA dose estimate, the record contains two other dose assessments for the Veteran. In July 2006, the DTRA issued a Radiation Dose Assessment (RDA) in accordance with the recommendations of the National Research Council's May 2003 report on the DTRA's dose reconstruction program. The July 2006 dose assessment found that the Veteran received a mean total external gamma dose of 0.014 rem, an upper bound gamma dose of 0.042 rem, an internal committed beta plus gamma dose to the colon of 0.006 rem, and an upper bound committed beta plus gamma dose to the colon of 0.060 rem. The Veteran did not receive any external or upper bound neutron dose or internal committed or upper bound committed alpha dose to the colon. The DTRA RDA was accompanied by a SPARE describing the circumstances of the Veteran's service, the history of Operation IVY, the contents of various operations records and reports, and the appellant's specific contentions and statements in support of her claim. In March 2007, the Veteran's Advisory Board on Dose Reconstruction recommended that the DTRA's Nuclear Test Personnel Review (NTPR) develop new procedures for the issuance of dose assessments. As such, the case was referred for an updated radiation dose assessment, to include the amount of any internal dose to the colon. The updated report was received in March 2012 and provides for much higher than previously determined radiation dose assessments providing the maximum benefit of the doubt to the Veteran and "ensuring that the reported doses are not less than the actual doses." According to the DTRA, the March 2012 dose assessment is based on "worst-case parameters and assumptions, not all of which the [V]eteran may have encountered." Based on the above, the DTRA estimated that the Veteran received an external gamma dose of 18 rem, an external neutron dose of 0.5 rem, an internal committed dose to the colon (alpha) of 0.1 rem, and an internal committed dose to the colon (beta plus gamma) of 2.0 rem. The SPARE accompanying the dose estimate is the same as that provided in July 2006 and again includes a thorough review of the appellant's contentions, as well as the contents of the personnel and operational records. The appellant's contentions regarding the Veteran's reported presence at Eniwetok during nuclear testing were considered in the report and her disagreement with the exposure scenario was also noted. However, the appellant's contentions were effectively disproved by the objective evidence of record, and therefore the dose estimate is based on the Veteran's presence at Kwajalein, not Eniwetok, during the Operation IVY detonations. The March 2012 dose estimate is substantially larger than either the 1995 or 2006 assessments and as noted in the report, was calculated to provide the maximum benefit of the doubt to the appellant regarding the Veteran's exposure. The Board therefore finds that the March 2012 DTRA dose estimate is accurate. In June 2016, a health physicist/Deputy Chief Consultant of the Post Deployment Health Services for the Under Secretary provided a memorandum and opinion against a link between the Veteran's colon cancer and in-service radiation exposure. The opinion included specific consideration of the March 2012 DTRA dose estimate and utilized the Interactive RadioEpidemiological Program (IERP) of NIOSH to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's cancer. An assumption that the Veteran's exposure was received as a single acute dose in 1952 was made to increase the probability of causation. The program calculated a 99th percentile value for probability of causation of 30.01 percent for colon cancer. Based on the probability of causation, the dose estimate, and all other facts in the case (including knowledge of the appellant's disagreement with the dose estimate), the health physicist concluded that there was no reasonable possibility that the Veteran's colon cancer with metastases to the lung and sacrum could be attributed to in-service ionizing radiation exposure. The Director of Compensation Services also issued an opinion against the claim in June 2016. The June 2016 memorandum from the Deputy Chief Consultant was reviewed, as well as the Veteran's dose estimates. The Director noted that the Veteran had a diagnosis of colorectal cancer 34 years after exposure to ionizing radiation with no information available as to the Veteran's smoking habits or family history of cancer. Based on review of the record, the Director also determined that there is no reasonable possibility that the Veteran's colorectal cancer with metastases to the lung and sacrum could be attributed to in-service ionizing radiation exposure. After review of the record, the Board finds that the evidence is against a finding that the Veteran's colon cancer was incurred due to radiation exposure. Weighing against service connection for colon cancer due to radiation exposure are the findings of the March 2012 DTRA and SPARE, as well as the June 2016 opinions issued by the health physicist/Deputy Chief Consultant of the Post Deployment Health Services for the Under Secretary and the Director of Compensation Services. These opinions were issued with full review of the claims file and were based on an accurate presentation of the facts-to include the nature of the Veteran's exposure, the time and type of his exposure, and with all benefit given to the Veteran regarding the amount of his radiation exposure. The opinions were accompanied by well-explained rationales, especially the June 2016 medical opinion provided by the Deputy Consultant health physicist. The Board therefore finds they are entitled to significant probative weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). In addition, the March 2012 DTRA report reflects improved methodology accepted by the medical community, as recommended by the National Research Council, and provides the best available dose estimate. The report and accompanying SPARE provide details regarding the nature of the Veteran's service and the exact methods and types of radiation exposure he experienced. Thus, the DTRA dose estimate and the application of that information by the VA health physicist/Deputy Chief Consultant of the Post Deployment Health Services for the Under Secretary and the Director of Compensation Services provides the preponderance of credible evidence in this case. That preponderance of the evidence establishes that there is no adequate evidentiary basis to connect the Veteran's fatal colon cancer to radiation exposure or any other incident of service. The record does contain some evidence weighing in favor of the claim; lay statements from the appellant and her son, the treatise evidence discussing the effects of low level radiation exposure and internal radiation exposure, a December 1995 opinion from Dr. Morgan, a health physicist, the December 1995 opinion of a nonprofit director, and the October 2001 opinion from Dr. Bash. With respect to the treatise evidence, the Board finds that it is of little probative value. The articles and studies pertain to the effects of low levels of radiation exposure, ingested gradually, and the associated underestimate of low-dose-rate effects in an exposed population. In this case, the Veteran was exposed to radiation over a one month period while in close proximity to nuclear detonation tests. The facts and circumstances of his exposure are distinguishable from those referenced in the treatise evidence submitted by the appellant. In addition, the Board notes that the June 2016 opinion issued by the Deputy Chief Consultant states that assuming the Veteran received a single acute dose of radiation in 1952 actually increases the probability of causation. The articles and studies do not pertain to the specifics of a possible relationship between the Veteran's circumstances of exposure and subsequent colon cancer with a degree of certainty such that, under the facts of this case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated medical opinion. See Sacks v. West, 11 Vet. App. 314, 317 (1998). Thus, the treatise evidence submitted by the appellant is too general and non-specific to merit much weight in support of the Veteran's claim. See also Wallin v. West, 11 Vet. App. 509 514 (1998) Turning to the opinions in support of service connection, the December 1995 opinions from Dr. Morgan, a health physician, and the director of the nonprofit organization, Radiation and Public Health Project, are also chiefly concerned with the accuracy of the military's instruments in measuring radiation exposure, as well as the effects of the "internal" radiation on the Veteran's colon from the ingestion of radiation-exposed food. With regards to the specific contentions in the December 1995 opinions-that the military did not properly measure atmospheric fallout, beta radiation, or consider low-level exposure-the Board notes that the dose estimate and SPARE provided by the DTRA in March 2012 includes specific findings regarding the low-level secondary fallout in Kwajalein Atoll and beta plus gamma dose estimates specific to the Veteran's colon. The DTRA information also specifically addresses the Veteran's internal exposure due to the ingestion of contaminated food and water during the periods of descending fallout while at Kwajalein. Additionally, as noted above, the current accepted methodology utilized by the DTRA for dose estimates provides for an increased probability of causation based on an episode of single, acute exposure rather than low-level exposure over a significant period of time. The Board therefore finds that the probative value of the December 1995 medical opinions is lessened as they are based on an inaccurate recitation of the facts with respect to the estimate of the Veteran's total exposure and the nature of his service and exposure over a one month period on Kwajalein Atoll. The Board similarly finds that the October 2001 medical opinion prepared by Dr. Bash is of reduced probative value. Dr. Bash appears to have based his findings of a link between the Veteran's radiation exposure and colon cancer primarily on the December 1995 report of Dr. Morgan, which, as discussed above, is itself of little probative value. In addition, Dr. Bash's methodology for calculating the Veteran's reported radiation exposure draws heavily from the statements of Dr. Morgan, the initial outdated April 1995 DNA dose estimate, and the treatise articles submitted by the appellant-evidence that has been previously discussed and discounted by the Board. Dr. Bash concludes that the Veteran "likely had a significant internal dose to his colon" from the ingestion of radioactive food and additional radiation exposure during his tour of duty at Kirkland Air Force Base or during temporary duty assignments to other nuclear test sites. With respect to the later of these contentions, the Board notes that such radiation exposure is purely speculative. Although the appellant stated in October 2001 that the Veteran had such exposure, no other radiation exposure is confirmed by any service department or organization, to include the April 1995, July 2006, and March 2012 reports by the DNA and DTRA. Furthermore, Dr. Bash does not appear to consider the accurate facts surrounding the Veteran's service, to include information from the DNA and DTRA establishing that the Veteran departed Kwajalein Atoll on December 5, 1952 and therefore received radiation exposure, including low-level ingested exposure, for approximately one month (as nuclear shots MIKE and KING were fired on November 1, 1952, and November 16, 1952, respectively). Finally, Dr. Bash does not provide any information as to his expertise for determining an accurate dose estimate for a radiation-exposed veteran. The Board notes that as of October 2001 he was an "Associate Professor of Radiology and Nuclear Medicine," but review of his curriculum vitae shows that his expertise is in the field of neuroradiology and diagnostic radiology research. Dr. Bash does not provide any information regarding an expertise in radiation exposure, radiation-related diseases, or oncology. Based on all of the above, the Board finds that the October 2001 medical opinion is of reduced probative value and is clearly outweighed by the other medical evidence weighing against service connection. The Board has also considered the statements of the appellant and her son linking the Veteran's colon cancer to radiation exposure during active duty service. However, as lay persons, they are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the appellant is competent to report observable symptoms, such as the Veteran's history of cancer treatment and manifestations, but finds her opinion as to the cause of the symptoms or a link with radiation exposure simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). To the extent the record also contains a May 1996 statement from another veteran who served in Kwajalein Atoll and has received treatment for colon cancer, the Veteran's friend states that he was present in both Kwajalein and Eniwetok atolls and therefore received different amounts of radiation exposure. Based on a full review of the evidence in this case, the Board concludes that the preponderance of the evidence is against service connection for colon cancer on any basis other than a presumptive disease associated with radiation exposure in 38 C.F.R. § 3.309. The Board has considered whether service connection is possible on a direct basis and in accordance with the procedural advantages prescribed at 38 C.F.R. § 3.311. As the preponderance of the evidence is against service connection for the fatal colon cancer, the benefit of the doubt doctrine is not applicable. The appeal for an earlier effective date for DIC benefits must be denied. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to an effective date earlier than March 26, 2002 for the award of service connection for the cause of the Veteran's death is denied. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs