Citation Nr: 1751495	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  15-09 062	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUES

1.  Entitlement to service connection for colon cancer to include residuals from chemotherapy to include fecal incontinence, right lower side pain, left groin pain, left side weakness, loss of taste, urinary incontinence, shortness of breath, vision impairment, and tactile sensation impairment, to include as due to exposure to ionizing radiation (colon cancer and its residuals).

2.  Entitlement to service connection for a stomach disorder to include diverticulocis, diverticuli, and gastroesophageal reflux disease (GERD) (stomach disorder).


REPRESENTATION

Appellant represented by:	The American Legion




WITNESSES AT HEARING ON APPEAL

Veteran and his wife


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran served on active duty with the United States Army from August 1975 to August 1978.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.

In May 2015, the Veteran and his wife testified at a hearing before the undersigned at the RO and a transcript of that hearing has been associated with the claims file.  Given the Veteran's personal hearing testimony and the evidence found in the record, the Board has recharacterized his claims of service connection arising out of his exposure to ionizing radiation and his stomach disorder claim as they appear on the first page of this decision so as to best reflect his intent when filing these claims.

In July 2015, the Board remanded the above issues for additional development.

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 preponderance of the evidence is against finding that colon cancer and its residuals was present in-service or it is related to service including the Veteran's documented in-service exposure to ionizing radiation.

2.  The preponderance of the evidence is against finding that a stomach disorder was present in-service or it is related to service.


CONCLUSIONS OF LAW

1.  Colon cancer and its residuals was not incurred or aggravated during military service nor may it be presumed to have been so incurred.  38 U.S.C.A. §§ 1111, 1112, 1113, 1131, 1137, 1153, 5100, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311 (2016).

2.  A stomach disorder was not incurred or aggravated during military service nor may it be presumed to have been so incurred.  38 U.S.C.A. §§ 1131, 5100, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As to the claim of service connection for colon cancer and its residuals, the Veteran claims his cancer was caused by his exposure to ionizing radiation while serving on the Marshall Islands from February 1978 to August 1978 helping to clean-up the islands after its use several years earlier as an atomic bomb testing area.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  As to the claim of service connection for a stomach disorder, the Veteran claims it was caused by his military service which included in-service treatment for gastrointestinal problems.  Id.

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a).  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  

To establish service connection for the claimed disabilities there must be (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 current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  

The Board is charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Initially, the Board notes that the record shows the Veteran being diagnosed with colon cancer and a stomach disorder (i.e., diverticulosis).  See, e.g., St. Rose Dominican Hospital treatment records dated in January 2010, February 2010; VA examination dated in September 2016. 

Certain specified disabilities becoming manifest in a "radiation-exposed veteran" shall be service connected.  38 U.S.C.A. § 1112(c)(1), (2); 38 C.F.R. § 3.309(d)(1), (2).  The term "radiation-exposed veteran" means a veteran who participated in a "radiation-risk activity."  38 U.S.C.A. § 1112(c)(3)(A); 38 C.F.R. § 3.309(d)(3)(i).  Here, there is no indication that the veteran had the types of in-service exposure to ionizing radiation listed above, and indeed, he does not contend otherwise, and thus presumptive service connection under 38 C.F.R. § 3.309(d) is not available.

Next, the Board notes that VA has special regulations for developing certain claims based on ionizing radiation exposure.  Specifically, if a Veteran was exposed in service to ionizing radiation and, after service, developed one of the specifically enumerated diseases within a period specified for each by law, then his claim is referred to the Under Secretary for Benefits who must determine, based on the extent of the exposure, whether there is a reasonable possibility that the disease was incurred in-service.  38 C.F.R. § 3.311.  The list of the specifically enumerated diseases are as follows:  (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer.  

In April 2016 the United States Army Dosimetry Center provided a dose estimate of 0.004 rem for this Veteran.  See 38 C.F.R. § 3.311.  In calculating the Veteran's dose estimate, the post-remand record shows that the United States Army Dosimetry Center in April 2016 was made aware of the Veteran May 2015 testimony that his radiation badge was not worn on his shirt at all times but was kept on his belt or in his pocket at times; his badge got wet from both swimming with it and wearing it in the rain; the Nuclear Regulatory Commission in a letter dated March 25, 1977, noted problems with badges; the claimant did not wear protective clothing while performing his duties and no proper decontamination procedures were in place on the islands (e.g., after leaving a hot area, they were decontaminated by being told to jump in the lagoon and scrub); the fact that the appellant worked on several islands during the time he was serving in the Marshall Islands, the historic text the claimant provided that outlined the actions taken to clean-up of the Marshall Islands, and the emails and statements from the appellant and men he served with that documented the conditions under which they served, the frequency with which they handed in their badges, and the number of men who have since died of cancer.  The Board also recognizes the fact that the post-remand dose estimate was obtained only after the provider was given the above evidence.  38 C.F.R. § 3.311.

In April 2016 the United States Army Dosimetry Center provided a dose estimate of 0.004 rem for this Veteran.  See 38 C.F.R. § 3.311.  Based on February 2017 expert medical opinions, the Board finds that the preponderance of the evidence is against service connection on this basis.

The availability of presumptive service connection for a disability based on exposure to ionizing radiation exposure does not preclude a Veteran from establishing service connection with proof of direct causation.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

As to service connection for colon cancer and its residuals and the presumptions found at 38 C.F.R. § 3.309(a), the record does not show the Veteran being diagnosed with one of the specifically enumerated disease processes in the first post-service year.  Accordingly, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) are of no help to the Veteran in establishing his claim of service connection for colon cancer and its residuals.  See 38 U.S.C.A. §§ 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309(a).

As to service incurrence under 38 C.F.R. § 3.303(a), service treatment records document the Veteran's complaints and treatment for vomiting and gastric pain in January 1976 opined to be a possible ulcer.  Service treatment records also document the Veteran's complaints and treatment for vomiting in January 1977 diagnosed as viral gastritis.  However the Veteran's service treatment records, including the August 1978 separation examination, are negative for treatment or a diagnosis of colon cancer and its residuals as well as otherwise negative for a stomach disorder.  In fact, at the separation examination the Veteran neither reported a history if symptoms or a diagnosis of colon cancer and its residuals as well as a stomach disorder and the examiners did not diagnose colon cancer and its residuals as well as a stomach disorder despite the history of vomiting and vial gastritis seen in his service treatment records.  In fact, the examiner specifically opined that his abdomen, anus, rectum and g-u system were normal.  Id.  

Therefore, the Board finds the most probative evidence of record to be the service treatment records which are negative for symptoms or a diagnosis of colon cancer and its residuals as well as a stomach disorder which shows he did not have colon cancer while on active duty and his two incidents of stomach trouble resolved prior to separation.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases).  Accordingly, the Board finds that service connection for colon cancer and its residuals as well as a stomach disorder must be denied based on in-service incurrence.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 

As to onset of the conditions in service, the Board finds that the length of time between the Veteran's separation from service in 1978 and the first documented problems with colon cancer and a stomach disorder (i.e., diverticulosis) years later to be evidence against finding continuity.  Therefore, the Board finds that entitlement to service connection for colon cancer and its residuals as well as a stomach disorder based on continued problems since service must be denied.  38 U.S.C.A. § 1131; see also 38 C.F.R. § 3.303(b).

As for service connection for a stomach disorder based on its initial documentation after service under 38 C.F.R. § 3.303(d), the record does not show a medical link between the current stomach disorder and the Veteran's military service.  Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein).  In fact, at the post-remand VA examination dated in September 2016 it was specifically opined that the Veteran's current stomach disability (i.e., diverticulitis) was not due to his military service, including the documented in-service treatment for gastroenteritis, because he was successfully treated for his viral gastroenteritis in 1977, there was no continuity of therapy, and his diverticulosis was noted several decades after he separated from the military.  This medical opinion is not contradicted by any other medical evidence of record.  

As for service connection for colon cancer and its residuals based on its initial documentation after service under 38 C.F.R. § 3.303(d), the Board notes that the Veteran's VA physician in March 2010 opined that it "is most likely related to military service from 1975-1978 in the Enewetak Atoll in which he was exposed to radioactive materials."  However, the Board finds that this opinion lacks probative value because it does not include any rationale, it does not specifically consider the Veteran's actual dose estimate (i.e., 0.004 rem), and it does not specifically consider the May 2016 position paper entitle "Radiation Risk in Perspective" which found that for radiation levels below about 10 rem the observed radiation effects in people are statistically no different from observed radiation affects in people with zero rem.  See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence).  

On the other hand, after obtaining the new dose estimate in April 2016, the reviewing Health Physicist in February 2017 opined that that it was unlikely that the Veteran's colon cancer was caused by exposure to ionizing radiation.  The opinion was based on the May 2016 position paper entitle "Radiation Risk in Perspective" which found that for radiation levels below about 10 rem the observed radiation effects in people are not statistically different from zero.  Thereafter, also in February 2017, the VA Central Office opined that there is no reasonable possibility that the Veteran's colon cancer resulted from radiation exposure in service because his dose was below 10 rem.  The Board finds that these February 2017 opinions are both competent and credible because they are supported by clinical data and other rationale.  See Owens.  Furthermore, the Board notes that the record on appeal is negative for a medical opinion that otherwise links the Veteran's post-service colon cancer to any other in-service disease or injury.  See Rabideau. 

As to any lay claims from the Veteran and others that the colon cancer and its residuals as well as a stomach disorder were caused by service including his exposure to ionizing radiation while serving on the Marshall Islands from February 1978 to August 1978 helping to clean-up the islands after its use several years earlier as an atomic bomb testing area, the Board finds that diagnosing cancer and a chronic stomach disorder requires special medical training that these lay persons do not have and therefore the presence of the disease is a determination "medical in nature" and not capable of lay observation.  See Davidson.   Thus, as since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that the lay opinions that these diseases are caused by service is not competent evidence.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  

Thus, the Board finds that the most probative evidence shows that colon cancer and its residuals as well as a stomach disorder were not caused by service, including his in-service exposure to 0.004 rem of ionizing radiation serving on the Marshall Islands from February 1978 to August 1978 helping to clean-up the islands after its use several years earlier as an atomic bomb testing area and service connection is not warranted based on the initial documentation of the diseases after service.  See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(d).

In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt.  38 U.S.C.A. § 5107(b).  However, as the preponderance of the evidence is against the claims, the doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

ORDER

Service connection for colon cancer and its residuals is denied.

Service connection for a stomach disorder is denied.





____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs