Citation Nr: 1756958 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 07-30 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for carcinoma of the bladder, to include as due to herbicide exposure and/or ionizing radiation. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. Kardian, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to January 1970. This matter is before the Board of Veteran's Appeals (Board) on appeal from a March 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board has reviewed the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. The Veteran served in Vietnam and exposure to herbicides is presumed. 2. The Veteran was exposed to ionizing radiation in-service. 3. Carcinoma of the bladder was not manifest during service or within one year of separation. Carcinoma of the bladder is not attributable to service, to include radiation and herbicide exposure. CONCLUSION OF LAW Carcinoma of the bladder was not incurred in, or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that neither the Veteran nor his representative identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Compliance with Prior Remand Most recently the case was before the Board in December 2015. In addition, the case was before the Board in April 2010 and October 2011. The case was remanded most recently in December 2015 for additional development. The case was to be referred to the Under Secretary for Benefits for an opinion under 38 C.F.R. § 3.311(c) as to whether the Veteran's carcinoma of the bladder is related to his service, to include in-service exposure to ionizing radiation. An opinion in August 2017 from the Director of Compensation Services has been associated with the claims file. As such the Board finds there has been substantial compliance with the prior remand. III. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Here, tumors, malignant are listed as an applicable chronic disease. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 CFR 3.303 (b). With respect to the current appeal the list of current diseases includes tumors, malignant. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. The Board will next turn to the Veteran's contention that the Veteran's bladder cancer is due to ionizing radiation. First, there are specific diseases which may be presumptively service-connected if manifest in a radiation-exposed veteran. 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. 38 C.F.R. § 3.309(d)(3). A "radiation-risk activity" is defined as onsite participation in a test involving the atmospheric detonation of a nuclear device, the occupation of Hiroshima or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946, 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, or the Veteran's presence at certain specified additional locations. Id. The second avenue of recovery is found under 38 C.F.R. § 3.311 (b)(2). This provision provides that certain listed "radiogenic" diseases found 5 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. When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest in the period specified, the claim will be referred to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311 (c). When such a claim is forwarded for review, the VA Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311 (e) and may request an advisory medical opinion from the VA Under Secretary of Health. 38 C.F.R. § 3.311 (b),(c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311 (c)(1). Pursuant to 38 C.F.R. § 3.311 (b)(2), radiogenic diseases include "any other cancer," which includes carcinoma of the bladder. A disease is also considered a radiogenic disease where competent scientific or medical evidence that the claimed condition is a radiogenic disease is received. See 38 C.F.R. § 3.311 (b)(4). Finally, there is a third avenue of recovery in a case involving radiation as the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 4, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Additionally, as to herbicide exposure Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. The Veteran served in Vietnam during the applicable period and exposure to herbicides is presumed. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e), 3.313, 3.318. VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630 -7641 (2003). The Veteran's currently diagnosed bladder carcinoma is not a disability for which presumptive service connection may be granted in association with exposure to herbicides. See 38 C.F.R. § 3.307(a)(6), 3.309(e). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) The Board notes that the Veteran is not asserting that his claimed disability resulted from him engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (b) (West 2014) are not applicable. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Analysis The Veteran contends that service connection is warranted for bladder cancer to include as due to his exposure to herbicides, ionizing radiation and toxins in-service. The Veteran's service treatment records have been associated with the claims file. At separation the report of medical history noted no tumor, growth, cyst or cancer, and no frequent or painful urination or blood in the urine. See December 3, 1969 report of medical history. At separation, on the report of medical examination the clinical evaluation of the genitourinary system was normal. See December 3, 1969 report of medical examination. The Veteran contends that his bladder cancer is a result of in-service exposure to herbicides and other toxins that were stored and released in close proximity to his work area as an air operations specialist. The Veteran reports while working as an air operations specialist in Vietnam he was on the flight line and his daily activities involved managing all types of aircraft and cargo supporting the war effort for bases south of Saigon. Additionally, the Veteran reports he was regularly exposed to jet fuel and other chemicals which resulted in his bladder cancer. Further, while stationed at Castle Air Force Base the Veteran reports as an air operations specialist he assisted in the B-52 combat training, and often flew as an observer on flights. The Veteran reports these flights involved the crew practicing high and low level bomb runs. The Veteran reported at times the crews would fly on the outer perimeter of the nuclear blast and collect air samples, as a result of the French conducting nuclear testing in the atmosphere. Upon the aircraft return the Veteran reports he was told these were "hot" or radioactive but he did not know the contamination level. As a member of the flight crew the Veteran reports he was in close contact to these aircraft once they returned to the flight line. Personnel records note the Veteran had service in the Republic of Vietnam during the applicable presumptive period, from November 1967 to March 1968, and as such exposure to herbicides is presumed. The Veteran's military occupational specialty (MOS) was as an air operations specialist. Research of service personnel records indicates the Veteran qualifies as a radiation exposed Veteran, and under 38 C.F.R. § 3.311, urinary bladder cancer is listed as a "radiogenic disease". VA and private treatment records have been associated with the claims file. Private treatment records in September 2004 note the Veteran was seen for potential blood in his urine. See September 21, 2004 private treatment record. September 2004 imaging noted a 3 centimeter (cm) bladder mass, highly suspicious for transitional cell carcinoma. See September 27, 2004 private outpatient diagnostic imaging report. October 2004 treatment records note a biopsy showed noninvasive papillary transitional cell carcinoma. See October 26, 2004 pathology report. Private treatment records note in October 2004 the Veteran was diagnosed with transitional cell cancer of the bladder and underwent a surgical resection of the bladder tumor. See October 25, 2004 surgery note. The issue is whether the Veteran's bladder cancer is related to service, to include herbicides, environmental toxins and ionizing radiation. A June 2005 opinion from the Veteran's private treatment provider has been associated with the claims file. The Veteran's physician noted that in October 2004 he was diagnosed with cancer of the bladder and underwent a surgical resection. See June 2005 private opinion. The physician noted that it has been shown that this type of cancer occurs more frequently with exposure to environmental toxins, and it is plausible that the various fuels and chemicals the Veteran was exposed to in-service could have contributed to his current condition. An October 2006 follow-up letter from the same private provider noted the Veteran's exposure to jet fuel and other toxins in-service and that his bladder cancer is as likely as not due to this in-service exposure. See October 16, 2006 private opinion. The Board finds these opinions are entitled to less probative weight, as the private physician failed to provide a thorough rationale for the opinion. Then, the Veteran was afforded a VA examination in August 2010. The examiner noted the Veteran reported working on the flight line and in air operations and flew on aircraft doing inspections. See August 2010 VA examination. The examiner noted the Veteran had exposure to jet fuel fumes and skin exposure. The examiner noted the Veteran's service in Vietnam, and presumed exposure to herbicides. Additionally, the Veteran reported while stationed at Castle Air Force Base there was a device in the bomb bay that flew over an area in the Atlantic Ocean where the French had detonated atomic bombs and the device measured the amount of radiation. The Veteran worked on the flight line of these aircraft. It was noted in September 2004 the Veteran was diagnosed with non-invasive papillary transitional cell carcinoma, low grade. He underwent surgery and 10 weeks of chemotherapy ending in February 2005. The examiner noted a review of the opinions from the Veteran's private treating physician. The examiner noted that a review of medical literature did not find an association between petrochemical, petroleum products, hydrocarbons and transitional cell carcinoma. The examiner noted a review of the medical literature relating to kidney cancer risks mentioned that exposure to trichloroethylene may play a role in its etiology. The examiner found that it was less likely than not that the Veteran's transitional cell carcinoma of the bladder is related to activities or exposure while in service. The examiner noted that the etiology of the Veteran's cancer is multifactorial and a relationship between working around jet aircrafts has not been found. The examiner noted the Veteran did not have a history of extraordinary exposure to chemicals, including extraordinary exposure to trichloroethylene. First addressing ionizing radiation, as noted above, in order to establish presumptive service connection under 38 U.S.C.A. § 1112 (c) and 38 C.F.R. § 3.309 (d), the Veteran must currently have a disease listed in 38 C.F.R. § 3.309 (d)(2), and have been a radiation-exposed veteran who participated in a radiation-risk activity as such terms are defined in the regulation. See 38 C.F.R. § 3.309 (d)(3) (2017). In this case, records from the period of active duty during which the Veteran claims exposure to radiation do not indicate that he participated in a recognized radiation risk activity such as an atmospheric detonation test or the occupation of Hiroshima or Nagasaki in 1945 to 1946, nor has the Veteran so asserted. Therefore, service connection on this basis is not for application. Because the presumptive service connection provisions are not applicable to this case, the Board will next examine the claim under 38 C.F.R. § 3.311, which provides for special development in cases involving radiogenic diseases. The Veteran's bladder cancer was diagnosed during the prescribed period; 5 years or more after exposure. The Board notes that, as discussed above it has been found that the Veteran was exposed to ionizing radiation in-service and thus the Veteran was referred for a dosage estimate. The case was referred to the Department of the Air Force, Air Force Technical Application Center (AFTAC) for a determination as to whether the Veteran was exposed to ionizing radiation. A March 2015 memorandum provided a dose estimate for the Veteran's participation in nuclear debris collection activities. The memorandum noted the Veteran may have participated in nuclear debris collection tests by providing support to aerial sampling missions. The Veteran's dosimetry records were not provided or available. It was noted that a whole body dose estimate was calculated as the Veteran might have been exposed to small amounts of nuclear debris while working around contaminated aircraft. The Veteran may have been exposed to as much as 39.2 mrem of ionizing radiation (deep dose) over the external surface of his body. Calculations note that the Veteran may have also been exposed to 16.8 mrem of internal ionizing radiation. The total effective dose equivalent (TEDE), or sum of the Veteran's external and internal dose is approximately 56 mrem. The memorandum noted that under 10 C.F.R. § 20.1201 the annual TEDE limit for occupationally exposed individuals is 5,000 mrem/year. Then, the claim was referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). An August 2017 opinion from the Director of Compensation Services has been associated with the claims file. The opinion noted that the Veteran's occupational exposure to ionizing radiation does not meet or exceed the annual dose estimate of 5 rem, or 10 rem in a lifetime. As such, the memorandum noted that an advisory medical opinion from the Under Secretary of Health is unnecessary. The Director noted that the Veteran's accumulated lifetime dose was .056 rem. It was noted that the Health Physics Society in their position statement PS010-2, Radiation Risk in Perspective states that in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against a quantitative estimate of health risks below an individual dose of 5 rem in one year or a lifetime dose of 10 rem above that received from natural sources. As below 5-10 rem, including occupational and environmental exposures, risks of health effects are either too small to be observed or are nonexistent. It was noted that there is no reasonable possibility that the Veteran's carcinoma of the bladder was the result of exposure to ionizing radiation during service. As such, service connection based on the procedural advantages of 38 C.F.R. § 3.311 is not warranted. Now the Board will consider whether service connection without reference to radiation regulations is warranted. Additionally, the Board will consider whether service connection is warranted for herbicide and exposure to other toxins. After consideration of all the evidence of record, the Board finds that the preponderance of the evidence is against finding that entitlement to service connection for bladder cancer is warranted. Concerning in-service disease, the Veteran's service treatment records do not indicate, and the Veteran does not contend, that his bladder cancer began during service or within one year of separation. Stated differently bladder cancer was not noted during service, and was not manifest, identified or diagnosed during service or within one year of separation. Furthermore, nothing suggests that he had characteristic manifestations of the disease process during that time frame. See 38 C.F.R. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303 (b). The Board notes the Veteran's reports of in-service exposure to radiation, herbicides and environmental toxins while working as an air operations specialist and his current symptoms and complaints and a connection between the two. While the Veteran is competent to testify as to his observations and his ongoing symptoms and his statements are credible his testimony must be weighed against the other evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While there is evidence of current bladder carcinoma and an in-service event the Board finds that the Veteran's statements as to whether his bladder cancer is related to service are outweighed by the other competent and credible evidence of record including the August 2010 VA examiners opinion and the August 2017 opinion from the Director of Compensation Services as well as the clinical evidence of record. The Board acknowledges that the Veteran's private treating physician submitted opinions in June 2005 and October 2006 noting the Veteran's exposure to jet fuel and other toxins in service and that his bladder cancer is as likely as not due to this in-service exposure. However, the private physician failed to provide a rationale for these opinions in either letter, and his opinions do not cite any medical or scientific literature. As such, the Board finds these opinions are entitled to less probative weight, as they failed to provide a thorough rationale for the opinion. As such, the Board finds the VA opinion is far more reasoned and substantiated by the totality of the evidence. The Veteran's lay assertions and those of the June 2005 and October 2006 private opinions are outweighed by the specific reasoned opinion provided in the August 2010 VA examination. The Board finds that the VA examination in August 2010 which was based on the examiner's medical expertise, well-reasoned rationale and review of the medical literature to be more probative and credible than the lay opinions of record. The examiner found that it was less likely than not that the Veteran's transitional cell carcinoma of the bladder was related to activities or exposure in service. The examiner noted the Veteran's service in Vietnam and exposure to toxins, including jet fuel fumes and skin exposure and herbicides, while working on the flight line. The examiner noted a review of the medical literature which found no association between petrochemical, petroleum products, hydrocarbons and transitional cell carcinoma. The examiner noted the Veteran's reported exposure but found no history of extraordinary exposure to chemicals, including extraordinary exposure to trichloroethylene. A review of the medical literature found that the etiology of the Veteran's type of cancer is multifactorial and the Veteran's relationship to working around jet aircraft for four years has not been found. The Board finds this opinion is entitled to probative weight, as the examiner's opinion was based on a thorough medical examination, review of the medical literature and the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds the examination and opinion is of high probative value. The Board notes the Veteran's in-service exposure to ionizing radiation and the March 2015 determination from AFTAC noted the Veteran may have been exposed to as much as 39.2 mrem of ionizing radiation over the external surface of his body and 16.8 mrem of internal ionizing radiation. The TEDE of the Veteran's external and internal dose is approximately 56 mrem. An August 2017 opinion from the Director of Compensation Services found that the Veteran's occupational exposure to ionizing radiation does not meet or exceed the annual dose estimate of 5 rem, or 10 rem in a lifetime. As such below 5-10 rem including occupational and environmental exposures, risks of health effects are either too small to be observed or are nonexistent. The Director found that there was no reasonable possibility that the Veteran's chronic carcinoma of the bladder was the result of exposure to ionizing radiation during service. As such service connection is not warranted to include as due to herbicide, ionizing radiation or other toxins exposure. As such the Board finds service connection is not warranted. The preponderance of the evidence weighs against finding that the Veteran's bladder carcinoma is related to service to include as due to ionizing radiation and/or herbicide exposure and as such service connection is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. ORDER Entitlement to service connection for bladder carcinoma to include as due to herbicide exposure and/or ionizing radiation is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs