Citation Nr: 1803445	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  10-04 309A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

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


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

P. Timmerman, Associate Counsel


INTRODUCTION

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) (2012).

The Veteran served on active duty in the Air Force from February 1951 to February 1955. 

This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In August 2014, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record.

In November 2014, the Board remanded the case for review by the Under Secretary for Benefits under 38 C.F.R. § 3.311(c) and for a VA examination. In May 2017, the Director of Compensation Service, on behalf of the Under Secretary for Benefits, obtained a medical opinion from the Under Secretary for Health. In June 2017, on the basis of the opinion of the Under Secretary for Health, the Director of Compensation Service provided the RO with written notice of her opinion that there is no reasonable possibility that the Veteran's prostate cancer can be attributed to ionizing radiation exposure while in military service. In addition, a VA examination was obtained in October 2017.

There is no evidence that further development is required under 38 C.F.R. § 3.311, that additional examinations are in order, or that any relevant records have yet to be requested. Thus, there has been substantial compliance with the Board's prior remand instructions, and an additional remand is not necessary. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

FINDING OF FACT

The Veteran's prostate cancer was not caused by his in-service exposure to ionizing radiation, and did not manifest within one year of separation from service.


CONCLUSION OF LAW

The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks service connection for prostate cancer. He contends that his cancer, first diagnosed in 1993 and recurring 2003, was caused by ionizing radiation to which he was exposed while measuring atomic fallout at the Nevada Test Site (NTS) in the spring of 1953.

Service connection may be established for any disability resulting from a disease or injury incurred in or aggravated by service, or for any disease diagnosed after discharge when the evidence establishes that the disability itself was incurred in service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a), (d).

Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The nexus to a current disability may be established presumptively for certain chronic diseases if the disease manifests in service, or to a degree of 10 percent disability within a year from the date of separation from service. 38 U.S.C. § 1112(a); 38 C.F.R. §§ 3.307, 3.309(a). Nexus for a chronic disease may also be established where the disease was not diagnosed as chronic in service, if the Veteran experiences continuous symptoms between service and the time of the current diagnosis of a chronic disease. 38 C.F.R. § 3.303(b).

For diseases related to ionizing radiation, there are two additional methods by which service connection may be established: 1) service connection may be established presumptively for certain "diseases specific to radiation-exposed veterans" listed in 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d); and 2) service connection may be established directly with the aid of special development procedures for the particular "radiogenic diseases" listed in 38 C.F.R. § 3.311; see Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997).

Initially, to the extent that prostate cancer may be considered a malignant tumor, and as such among the "diseases specific to radiation-exposed veterans" listed in 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d), and among the chronic diseases subject to ordinary presumptive service connection, listed in 38 C.F.R. § 3.309(a), there is no evidence that the Veteran's cancer manifested in service or within a year thereafter. Nor is there evidence that the Veteran experienced continuous symptoms from the time of service to his first diagnosis of prostate cancer in 1993. Therefore, service connection is not warranted under 38 C.F.R. § 3.309(a), 3.309(d), or 3.303(b).

The Board turns next to whether service connection is warranted based on the classification of prostate cancer as a "radiogenic disease." Radiogenic diseases are entitled to special development under 38 C.F.R. § 3.311. This section requires that for any veteran diagnosed with one of the named radiogenic diseases, before the claim is adjudicated an assessment be made as to the size and nature of the Veteran's radiation dose or doses. Then, if the disease manifested within a specified period - for prostate cancer, 5 years or more after exposure to radiation - the claim is referred for further consideration to the Under Secretary for Benefits, who may request an advisory medical opinion from the Under Secretary for Health. 

The Under Secretary for Benefits determines whether: 1) it is at least as likely as not that the veteran's disease resulted from exposure to radiation in service, or 2) there is no reasonable possibility that the veteran's disease resulted from radiation exposure in service. The Under Secretary for Benefits then provides the determination to the RO in writing. If the Under Secretary for Benefits cannot reach a determination, the matter is referred to an outside consultant for an advisory opinion. 

Following these procedures, the claim is adjudicated with due weight given to the determination of the Under Secretary for Benefits and any opinion provided by the Under Secretary for Health or an outside consultant.

To begin with, the Board finds that the Veteran has a current radiogenic disease as established by his 1993 and 2003 diagnoses of prostate cancer. Furthermore, the Defense Threat Reduction Agency (DTRA) acknowledged in August 2009 the Veteran's participation in atmospheric nuclear testing at the NTS from March to June 1953. The Board finds that the Veteran's exposure to ionizing radiation while participating in this testing constitutes the in-service incurrence of an injury or disease for service connection purposes. The only remaining question therefore is whether the evidence establishes a nexus between the Veteran's prostate cancer and his exposure to ionizing radiation in service. 

The Veteran does not contend that there is a nexus between his prostate cancer and any in-service event other than his radiation exposure, nor does any evidence of record support such a theory. Therefore, the Board finds that the Veteran is not entitled to service connection under the general provisions governing awards of VA compensation, and the following analysis is limited to the question of nexus to the Veteran's radiation exposure, as developed via the procedures prescribed by 38 C.F.R. § 3.311. See Combee v. Principi, 34 F.3d 1039, 1043 (1994); Hardin v. West, 11 Vet. App. 74 (1998).

In August 2009, a dose estimate for the Veteran was provided by the DTRA in accord with the special development procedures required under 38 C.F.R. § 3.311. The estimate stated that the Veteran could have received no more than the following doses:

- External gamma dose: 16 rem
- External neutron dose: 0.5 rem
- Internal committed dose to the prostate (alpha): 0 rem
- Internal committed dose to the prostate (beta plus gamma): 1 rem

In April 2017, responding to a Board remand, the Director of Compensation Service, on behalf of the Under Secretary for Benefits, requested a dose estimate from the Under Secretary for Health, as well as an opinion as to whether the Veteran's prostate cancer resulted from his radiation exposure. The response cited to the dose estimate of the DTRA, and calculated a 99th percentile value for the probability of causation of 16.04% for prostate cancer. On the basis of this analysis, in June 2017 the Director of Compensation Service provided written notice to the RO of her opinion that there is no reasonable possibility that the Veteran's prostate cancer can be attributed to ionizing radiation exposure while in military service.

In addition, the Veteran underwent VA examination in October 2017. The examiner thereafter opined that the Veteran's prostate cancer is less likely than not caused by or a result of his active duty military service, including his exposure to ionizing radiation. The examiner observed that prostate cancer was noted neither in the Veteran's service treatment records nor in his immediate post-service medical records. Regarding the likelihood that the Veteran's prostate cancer was caused by exposure to ionizing radiation in particular, in finding that it was less likely than not, the examiner simply relied on the probability estimate provided by the Under Secretary for Health.

At his Board hearing in August 2014, the Veteran suggested that he thought the DTRA assessment of his radiation exposure was low, because he was closer to the nuclear blasts than the Agency estimated. He also indicated that at least one doctor had told him that his radiation exposure may have contributed to his prostate cancer.  Additionally, the Veteran's representative has argued that the prepared dose estimate is low because it was based upon an assumption that the Veteran received only a single acute dose of radiation.  In this regard, the Board notes that the radiation dose estimate is based upon available service department records.  To the extent that the Veteran and his representative assert that he received a higher dose, their allegations are not competent, as they lack the requisite expertise, and the record does not support a finding that the service records are inaccurate or incomplete.  Neither the Veteran nor his representative is competent to provide their own radiation dosage assessment, or to opine as to a nexus between his exposure and his prostate cancer. In addition, no independent dose estimate from a credible source has been associated with the claims file. See 38 C.F.R. § 3.311(a)(3). Nor has the Veteran submitted any medical opinion favorable to his claim. A March 2008 letter from a private physician concludes only that the physician cannot determine for sure if the exposure to radiation fallout had increased the Veteran's risk of prostate cancer.

The causation probability calculated by the Under Secretary for Health on the basis of the dose estimate provided by the DTRA was prepared in accord with special procedures designed to aid the Veteran in establishing his claim for service connection. See Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997). The dose estimate itself was prepared conservatively, based on worst-case parameters and assumptions, and taking into account the Veteran's input to ensure that the details of his exposure do not indicate that his actual dosage exceeds the Agency's estimates. In addition, the opinion of the Director of Compensation Service, based on the dose estimate and probability calculation, was corroborated by the opinion of a VA medical examiner. For these reasons, the Board finds the above evidence highly probative.

In sum, the most probative evidence indicates that the probability that the Veteran's prostate cancer was caused by exposure to ionizing radiation is exceedingly low. Therefore, the Board finds that the preponderance of the evidence indicates that the Veteran's prostate cancer is not attributable to his in-service exposure to ionizing radiation. Because the preponderance of the evidence weighs against the claim, the benefit of the doubt doctrine does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


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ORDER

Entitlement to service connection for prostate cancer, claimed as due to exposure to ionizing radiation, is denied.




____________________________________________
S. C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs