Citation Nr: 1754733	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  11-10 587	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Mishalanie, Counsel



INTRODUCTION

The Veteran served on active duty from June 1972 to June 1974 in the United States Army. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  In December 2012, the Veteran withdrew his request for a Board hearing. 


FINDING OF FACT

1.  The Veteran is not shown to have been a "radiation exposed" veteran and there is no probative evidence demonstrating that he was otherwise exposed to ionizing radiation during his active service.

2.  The Veteran's prostate cancer did not manifest during active service or within one year of separation from service, and has not been shown to be otherwise causally related to his service.  


CONCLUSION OF LAW

The criteria for service connection for prostate cancer have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has considered the Veteran's claim and decided entitlement based on the evidence or record.  Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Establishing service connection generally requires competent evidence of three things:  (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2017). 

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  As prostate cancer is considered to be a chronic disease for VA compensation purposes, 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; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including prostate cancer, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

Service connection for a disorder which is claimed to be attributable to ionizing radiation exposure during service can be accomplished in three different ways.  Ramey v. Brown, 9 Vet. App. 40 (1996).  First, a "radiation-exposed veteran" is defined as a Veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity.  "Radiation-risk activity" is defined, in pertinent part, to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan; or internment as a prisoner of war.  38 C.F.R. § 3.309(d).  Diseases subject to presumptive service connection based on participation in a "radiation-risk activity" are included in 38 C.F.R. § 3.309(d)(2).  Prostate cancer is not listed among the presumptive diseases.  38 C.F.R. § 3.309(d)(2).

Second, another set of radiogenic diseases found five years or more after service in an ionizing radiation-exposed Veteran may be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service.  38 C.F.R. § 3.311(b)(2).  These regulations provide instruction on the development of claims based on exposure to ionizing radiation.  Pursuant to 38 C.F.R. § 3.311, a "radiogenic disease" is defined as a disease that may be induced by ionizing radiation.  38 C.F.R. § 3.311(b)(2)(i) -(xxiv).  Prostate cancer is listed among the radiogenic diseases.  Id.  38 C.F.R. § 3.311(a) calls for the development of a radiation 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 presumptive period specified in either 38 C.F.R. § 3.307 or § 3.309, and, relevant to the claim decided herein, where it is contended that the disease is a result of ionizing radiation in service.  In pertinent part, the regulations direct that dose data will be requested from the VA Under Secretary for Health, to the extent feasible, based on available methodologies.  Id.  

Third, even if the claimed disability is not listed as a presumptive disease under 38 C.F.R. §3.309(d) or as a radiogenic disease under 38 C.F.R. § 3.311, service connection must still be considered under 38 C.F.R. § 3.303(d) in order to determine whether the disease diagnosed after discharge was incurred during active service.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

VA shall consider all information and lay and medical evidence of record.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  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. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

In this case, the Veteran contends that his prostate cancer was caused by exposure to ionizing radiation during his military service.  See February 2011 Substantive Appeal.  He asserts that he was exposed to ionizing radiation while he was stationed in Germany and worked on MGM-29 Sergeant and MGM-52 Lance missile systems.  See April 2013 statement.

The evidence indicates that the Veteran was diagnosed with prostate cancer in April 2006 and underwent a prostatectomy in August 2006.  Therefore, the first requirement for service connection - a current diagnosis - has been met.

With regard to exposure to radiation, a March 2013 Supplemental Statement of the Case notes that, at an informal conference with a Decision Review Officer in December 2011, the Veteran has stated that he was not aware of any exposure while working as a missile crewman and that he was not required to wear a dosimeter..  The National Personnel Records Center responded that there were no records indicating that the Veteran was exposed to radiation.  His service personnel records show that he was a missile crewman for approximately two weeks in January 1973, and then was assigned to duties as a heavy truck driver and loader/transportation operations.  The AOJ sent the Veteran a letter and requested that he provide additional details concerning his radiation risk activity; however, he failed to respond.  See December 2012 correspondence.  

Based on the foregoing, the Board finds that the second requirement for service connection - an in-service injury, disease, or event - has not been shown.  Simply put, there is no evidence that the Veteran was actually exposed to radiation during service.  Therefore, further development to obtain a dose estimate under 38 C.F.R. § 3.311 is not warranted here.  The Board notes that the AOJ attempted to obtain additional details from the Veteran regarding his claimed exposure; however, he failed to respond.  See Wood v. Derwinski, 1 Vet. App. 190 (1991) (finding that VA's duty to assist is not a one-way street).

Finally, the Board notes that there no medical evidence otherwise linking the Veteran's prostate cancer to service.

The Board has also considered the lay evidence of record.  As noted above, the Veteran is competent to describe what he has personally observed or experienced; however, he indicated that he was not aware of any radiation exposure during service and that he was not required to wear a dosimeter.  Therefore, the basis for his belief that he was exposed radiation is unclear.  On this account, the Board finds the Veteran's service personnel records and the response from the National Personnel Records Center more probative than the more general lay assertions in this regard.  

The Board is grateful for the Veteran's honorable service; however, given the record before it, the Board finds that evidence with regard to this claim does not reach the level of equipoise.  See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination).  Accordingly, the claim for service connection for prostate cancer must be denied.





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ORDER

Service connection for prostate cancer, to include as due to exposure to ionizing radiation is denied.  



____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs