Citation Nr: 1753926 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 14-24 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for prostate condition claimed as due to ionizing radiation exposure. 2. Entitlement to service connection for chronic disability manifested by hair loss, gastrointestinal problems and joint pain claimed as due to ionizing radiation exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran served on active duty with the U.S. Air Force from December 1951 to December 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Oakland, California. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). FINDINGS OF FACT 1. The Veteran participated in a radiation risk activity, as defined by VA regulations, during service and is a radiation-exposed Veteran. 2. The Veteran has not been diagnosed with prostate cancer. 3. The current evidence does not show that the Veteran was diagnosed with a chronic disability manifested by hair loss, gastrointestinal problems and joint pain at any time during the pendency of the appeal. 4. The Veteran's currently diagnosed benign prostate hypertrophy (BPH), gastroesophageal reflux disease (GERD), and osteoarthritis are not radiogenic diseases, and are not the result of his in-service exposure to ionizing radiation. CONCLUSIONS OF LAW 1. The criteria for service connection for a prostate condition, diagnosed as BPH are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.303, 3.309, 3.311 (2017). 2. The criteria for service connection for chronic disability manifested by hair loss, gastrointestinal problems and joint pain, to include BPH, GERD, and osteoarthritis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in letters dated February 4, 2009 and February 22, 2010. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service treatment records and pertinent post-service VA and private medical records have been obtained and associated with the claims file. The Veteran has also submitted potentially relevant documents and argument in support of his claim, including personal statements. The Board acknowledges that the Veteran has not been afforded a VA examination regarding his claims for service connection. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. As discussed in more detail below, the record indicates the Veteran is a confirmed participant of Operation TEAPOT, conducted at the Nevada Test Site in 1955 and, therefore, is a radiation-exposed Veteran. However, there is no medical evidence of a current disability related to that alleged exposure. Specifically, no radiogenic disease listed in 38 C.F.R. § 3.311 is alleged or shown. Moreover, the disorders from which the Veteran currently suffers are not among the disabilities recognized by VA as etiologically related to ionizing radiation exposure under 38 C.F.R. § 3.309(d)(2). The Veteran has not otherwise provided any evidence that would indicate entitlement to service connection for a prostate condition or service connection for disability manifested by hair loss, gastrointestinal problems, and joint pain by proof of direct causation. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Therefore, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Law and Analysis The Veteran is seeking service connection for a prostate condition and for chronic disability manifested by hair loss, gastrointestinal problems, and joint pain. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. § 3.303(a) (2017). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases, such as arthritis may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2014); 38 C.F.R. §§ 3.307, 3.309(a) (2017). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, if a veteran exposed to radiation during active service later develops one of the diseases listed at 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d), a rebuttable presumption of service connection arises. See 38 C.F.R. §§ 3.307, 3.309. Second, under 38 C.F.R. § 3.311, service connection may be established if a radiation-exposed Veteran develops a "radiogenic disease" (one that may be induced by ionizing radiation), if the VA Undersecretary for Benefits determines that a relationship, in fact, exists between the disease and the veteran's radiation exposure in service. Third, direct service connection may be established by competent evidence establishing the existence of a medical nexus between the claimed condition and exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed.Cir. 1994). Application of the above provisions is dependent upon establishing that the veteran was exposed to ionizing radiation during active service. A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who, while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" includes on site participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d)(3)(ii). The term onsite participation includes during the six month period following the official operational period of an atmospheric nuclear test, presence at the test site or other test staging area to perform official military duties in connection with completion of projects related to the nuclear test decontamination of equipment used during the nuclear test. 38 C.F.R. § 3.309(d)(3)(iv)(C). Diseases presumptively service connected for radiation-exposed Veterans under the provisions of 38 C.F.R. § 3.309(d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 C.F.R. § 3.309(d)(2). If a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one of the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the Veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. The term "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: (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. 38 C.F.R. § 3.311 (b)(2). 38 C.F.R. § 3.311 also provides instruction on the development of claims based on exposure to ionizing radiation, and does not refer to any other types of radiation exposure. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumption period specified in either section 3.307 or section 3.309, and where it is contended that the disease is a result of ionizing radiation exposure in service. After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran contends that he has prostate cancer and disability manifested by hair loss, gastrointestinal problems, and multiple joint pain as a the result of exposure to ionizing radiation while witnessing atomic testing at a Nevada test site during Operation Teapot in 1955. See Radiation Risk Activity Information Sheet received in March 2010. The Veteran reported that he was attached to 4900 Installation Squadron at Indian Springs Air Force Base in Nevada. He wore a film badge and witnessed the testing, conducted at night with no visibility, from a trench. A fact sheet from the Defense Threat Reduction Agency (DTRA), shows that Operation TEAPOT was the fifth series of atmospheric nuclear tests conducted at the Nevada Test Site from February 18 to June 10, 1955. The Air Force Special Weapons Center (AFSWC) provided aircraft and pilots for airdrops, security sweeps, cloud sampling, cloud tracking, and aerial radiological surveys for the Joint Test Organization. These missions were performed by the 4925th Test Group, 4926th Test Squadron, 4935th Air Base Squadron, and 4900th Air Base Group. See Defense Threat Reduction Agency (DTRA) Factsheet, Operation Teapot, found at http://www.dtra.mil/Portals/61/Documents/NTPR/1-Fact_Sheets/16_TEAPOT.pdf. Service personnel records confirm the Veteran served with the 4935th Air Base Squadron in Nevada in February 1955 and thus meets the criteria for a "radiation-exposed veteran" under 38 U.S.C. § 1112(c)(3) and 38 C.F.R. § 3.309(d)(3). Post-service VA medical records show the Veteran has received treatment for BPH, GERD, and osteoarthritis since at least 2006. During a VA examination in May 2011 he reported a surgical history of prostate cancer and hair transplant. However, BPH, GERD, osteoarthritis, and hair loss are not listed in 38 C.F.R. § 3.309(d)(2) (as diseases specific to radiation-exposed veterans) or in 38 C.F.R. § 3.311(b)(2) (as radiogenic diseases, i.e., diseases that may be induced by ionizing radiation. The Board also notes that prostate cancer is not among those forms of cancer which may be presumptively service-connected under the provisions of 38 C.F.R. § 3.309. However, it is a radiogenic disease under the provisions of 38 C.F.R. § 3.311 such that, if established, and contended to be a result of exposure to ionizing radiation, the Veteran would be entitled to special development procedures for the purpose of establishing the nature and extent of radiation exposure In this case, these provisions are inapplicable here, as no diagnosis of prostate cancer is of record. Although the 2011 VA examination reflects that the Veteran had a history of prostate cancer, this was the Veteran's self-reported history, without clinical evidence of such. In addition, multiple clinical records indicate the Veteran has been treated for BPH, but are silent as to an actual diagnosis or treatment of prostate cancer. So while the Veteran may sincerely believe that he has or has had prostate cancer, the evidence of record does not support such a finding. Thus no radiogenic disease is "established" for the purposes of that provision. The Board finds that the Veteran's claim must be denied on this basis. With regard to whether the evidence establishes a direct connection between the Veteran's service and his development of BPH, GERD, arthritis, or hair loss, service records are absent for any complaints, signs or symptoms suggestive of these disorders and pertinent complaints do not arise in post-service treatment records until 2006, 50 years after service. Although not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran). Furthermore, there is no competent evidence linking the Veteran's claimed disorders to his military service many years earlier and he has not submitted any medical opinion that relates it to service/events therein. Finally, to the extent the Veteran's statements purport to provide a nexus opinion between his claimed disorders and service, the Board notes determining the etiology of disorders such as BPH, GERD, arthritis, and hair loss (as distinguished from merely reporting the presence of symptoms) is not a simple question. Doing so requires knowledge of the complexities of the genitourinary, gastrointestinal and musculoskeletal systems, the potential causes of BPH, GERD, arthritis, and hair loss, as well as the inherently medical question of how remote radiation exposure in service may have contributed to bring about the post-service onset of these disorders, and so is beyond the scope of knowledge of a lay person. In this case, the facts are complex enough that the Veteran's current assertions regarding his symptoms are not sufficient to outweigh the remaining evidence of record. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). In any event, even assuming the Veteran is competent to address the etiology of his BPH, GERD, arthritis, and hair loss years after service, the probative value of his opinion is outweighed by the evidence of record. As such, the Board finds that the Veteran's statements as to the etiology/onset of his claimed BPH, GERD, arthritis, and hair loss disorders are not sufficient to satisfy the requisite nexus requirement. Accordingly, the preponderance of the evidence is against the claims and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107 (b). ORDER Service connection for prostate condition, diagnosed as BPH claimed as due to ionizing radiation exposure is denied. Service connection for chronic disability manifested by hair loss, GERD, and osteoarthritis claimed as due to ionizing radiation exposure is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs