Citation Nr: 1805663 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 09-10 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for prostate cancer, to include as due to radiation exposure or to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. L. Marcum, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1953 to September 1956 and from February 1957 to August 1959. These matters are on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction over the issue on appeal is now with the RO in Waco, Texas. The claim on appeal was originally denied in the Board's March 2014 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Court granted an April 2015 Joint Motion for Partial Remand (JMPR) and vacated the portion of the March 2014 Board decision that denied the Veteran's claim seeking entitlement to service connection for prostate cancer. In August 2015, the Board remanded appeal for further development pursuant to the April 2015 JMPR. Subsequently, the requested development was completed and the appeal was returned to the Board for appellate review. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. The Veteran was exposed to ionizing radiation while participating in Operation REDWING from April 1956 to August 1956. 2. Prostate cancer was not shown in service or for many years thereafter, and is unrelated to active duty service, to a service-connected disability or to exposure to ionizing radiation. CONCLUSION OF LAW Prostate cancer was not incurred in or aggravated by service, and is not related to service, to ionizing radiation exposure or to a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309, 3.310, 3.311 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained available service medical records and post-service VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. While the RO determined that some of the Veteran's VA treatment records were unavailable, the Board finds that a diligent effort was made to acquire them and that any further efforts to locate those records would be futile. The Veteran also submitted treatment records from a private facility and his own statements in support of his claim. VA examinations with respect to the issue on appeal were also obtained in July 2009, November 2012, and April 2016. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the VA examinations obtained in this case are adequate. They are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claims to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2017). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. Bernard v. Brown, 4 Vet. App. 384 (1993). The RO adequately completed all steps required to develop a claim based on exposure to ionizing radiation. Furthermore, there is no indication in the record that additional evidence relevant to the issue being addressed is available and not already part of the record. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, and the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537(2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). II. Serivce Connection 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 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). In some cases, a relationship between the claimed disability and the disease or injury incurred or aggravated during service may be established through a demonstration of continuity of symptomatology for certain specific chronic disabilities. 38 C.F.R. § 3.303(b) (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, prostate cancer is not one a disease listed as chronic for VA purposes. 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disability. 38 C.F.R. § 3.303(a) (2017). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. 38 U.S.C. § 1154(a) (2012); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran has been diagnosed with prostate cancer, and it is his assertion that prostate cancer is due to his participation in Operation REDWING, a series of 17 atmospheric nuclear detonations that occurred in the Pacific Proving Ground, specifically at Bikini and Eniwetok atolls, from May 1956 to July 1956. Establishing service connection for a disability on the basis of exposure to ionizing radiation during service can be shown in two different ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, a radiation-exposed veteran may be presumptively service-connected for any of the specific diseases listed in 38 C.F.R. § 3.309(d), which encompass a variety of different forms of cancer. Under that section, a radiation-exposed veteran is one who participated in a radiation-risk activity which, by definition, means the onsite participation in a test, or within six months of the test, involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at other certain specified sites. 38 C.F.R. § 3.309(d)(3) (2017). In applying that statutory presumption, there is no requirement for documenting the level of radiation exposure. If the requirements for presumptive service connection under 38 C.F.R. § 3.309(d)(3) (2017) are not met, service connection may also be established if the evidence shows the existence of any other radiogenic diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2) (2017) or other claimed diseases considered to be radiogenic through a showing of competent scientific or medical evidence. 38 C.F.R. § 3.311(b)(4) (2017). When it has been determined that: (1) a Veteran has been exposed to ionizing radiation; (2) the Veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c) (2017). When a claim is forwarded for review, the 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 Under Secretary of Health. 38 C.F.R. §§ 3.311(b), (c)(1) (2017). 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) (2017). As to whether service connection may be warranted on a presumptive basis, the Defense Threat Reduction Agency (DTRA) submitted a letter in December 2008, acknowledging that the Veteran participated in Operation REDWING in 1956. Thus, he is a radiation-exposed veteran for purposes of service connection under 38 C.F.R. § 3.309(d) (2017). However, service connection is nonetheless not warranted on a presumptive basis, as prostate cancer is not one of the disabilities specifically listed as a disease that is specific to radiation-exposed veterans in 38 C.F.R. § 3.309(d)(2) (2017). While cancer of the urinary tract is one of the disorders listed in 38 C.F.R. § 3.309(d)(2), the term urinary tract is explicitly confined to the kidneys, renal pelves, ureters, urinary bladder, and urethra. Therefore, while the Board acknowledges that the Veteran is a radiation-exposed veteran for purposes of 38 C.F.R. § 3.309(d), prostate cancer is not a disability that is listed as a disease that is specific to radiation-exposed veterans, and service connection on a presumptive basis is not warranted under 38 C.F.R. § 3.309(d)(2) (2017). Service connection on a presumptive basis having not been established, the Board next must consider whether service connection is warranted as a radiogenic disease under 38 C.F.R. § 3.311 (2017). It is noted at the outset that prostate cancer is considered a radiogenic disease for purposes of this section. Furthermore, 38 C.F.R. § 3.311(b)(2)(xxiv) (2017) establishes that any form of cancer will be a radiogenic disease. Thus, the salient question is whether it is "at least as likely as not" that the Veteran's prostate cancer is attributable to ionizing radiation exposure during service. Based on the nature, circumstances, and extent of the Veteran's ionizing radiation exposure, and upon the medical evidence of record, the Board concludes that prostate cancer is less likely than not related to ionizing radiation exposure. The evidence includes an exposure record showing that the Veteran experienced a whole-body dose of 0.745 rem for the period from April 1956 to August 1956. The VA Under Secretary for Benefits has coordinated with VA's Chief Public Health and Environmental Hazards Officer to develop a specialized methodology in order to expedite the processing of prostate disorder claims without the need for individual review. As was explained in a January 2009 letter, which is of record, this process is based on the presumption that a veteran received the worst-case dose, as determined by the DTRA, and based on this presumed exposure, VA may apply research provided by the Under Secretary for Benefits in order to determine whether a relationship between prostate cancer and ionizing radiation exposure may be excluded. Thus, only in cases where a relationship cannot be excluded is there a need to forward a veteran's specific information to the Under Secretary for Benefits for opinion. In this case, the DTRA determined in December 2008 that the Veteran's participation in Operation REDWING did not include any activities that would have resulted in a dose higher than the worse-case dose which, for a Veteran in Operation REDWING, was a total exposure of 25 rem, based on an external gamma dose of 18 rem, external neutron dose of 0.5 rem, internal committed dose to the prostate due to alpha particle radiation of 4.5 rem and internal committed dose due to beta and gamma radiation of 2 rem. The Board tangentially notes that the worst-case dose is greater than the dose the Veteran's exposure record indicates he actually received. Next, according to the research performed by the Under Secretary for Benefits and VA's Chief Public Health and Environmental Hazards Officer, an individual must be exposed to an adjusted dose of 40 rem in order for it to be "at least as likely as not" that prostate cancer is attributable to ionizing radiation exposure. As the Veteran's worst-case dose is considerably less than 40 rem, noted to be the screening dose, a medical relationship was not established. In addition to the above, the Under Secretary for Benefits has also determined that all Veterans who served in the Pacific Proving Ground and were either (a) diagnosed with prostate cancer 25 or more years after exposure, or (b) were exposed to ionizing radiation at the age of 25 or older, received prostate doses that are less than the screening dose. Here, the Veteran's medical records show that he was 21 years old when he participated in Operation REDWING, and he was not diagnosed with prostate cancer until 2008, or 52 years after his participation. Therefore, because the Veteran's prostate cancer is not a disability that may be presumed related to his participation in Operation REDWING in 1956, service connection is not warranted under 38 C.F.R. § 3.309(d). Moreover, although prostate cancer is a radiogenic disease, service connection is also not warranted under 38 C.F.R. § 3.311, as the information provided by the Under Secretary for Benefits establishes that it is not "at least as likely as not" that the Veteran's prostate cancer is attributable to even the worst-case scenario of exposure. Based on the Board's August 2015 remand order, the Veteran's records were referred for further consideration by the Under Secretary for Benefits. In April 2017, the Director for Compensation Services, on behalf of the Under Secretary for Benefits, requested an advisory medical opinion from the Under Secretary for Health. Pursuant to 38 C.F.R. § 3.311(b)(1)(iii), (c)(1), the Director for Compensation Services specifically asked for the Under Secretary for Health to opine as to "whether it is likely, unlikely, or as likely as not that the Veteran's prostate cancer resulted from exposure to ionizing radiation in service." In May 2017, the Under Secretary for Health provided a memorandum opinion. In particular, the Under Secretary for Health reviewed the Veteran's medical history, the circumstances of his military service, to include his participation in Operation REDWING, and the DTRA's dosage estimates from the December 2008 report. The Under Secretary for Health explained that, for purposes of calculation, "the Veteran's external radiation dose was assumed to have been received as a single acute dose in the earliest year of exposure (1956) [and that] [t]his assumption would tend to increase the probability of causation as calculated by the [Interactive RadioEpidemiological Program (IREP]." The Under Secretary for Health further indicated that the skin dose of 550 rem was not included in the calculation because the Veteran does not have skin cancer. It was noted that the program calculated a 99th percentile value for the probability of causation of 25.18% for prostate cancer. In view of the above, the Under Secretary for Health opined that it was "not likely that prostate cancer was caused by exposure to ionizing radiation while in military service." In June 2017, the Director for Compensation Services, on behalf of the Under Secretary for Benefits, issued an opinion based on the opinion obtained from the Under Secretary for Health. Considering the same facts, the Director for Compensation Services concluded that "there is no reasonable possibility that the Veteran's prostate cancer was the result of exposure to ionizing radiation during service." Accordingly, the Board must also conclude that service connection is not warranted under 38 C.F.R. § 3.311. Although it has been the Veteran's primary assertion that his prostate cancer is attributable to his ionizing radiation exposure, he is nevertheless not precluded from establishing service connection with proof of actual direct causation as due to active duty service or secondary to his service-connected prostatitis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, based on the evidence of record, the Board finds that service connection is not warranted on either basis. First, while the service treatment records show episodes of urethritis and a history of venereal disease during active duty, there are no complaints of, treatment for, or any diagnosis related to prostate cancer while in service. Significantly, the Veteran's separation physical examination in August 1959 does not document any complaints of or observed symptoms related to prostate cancer. The post-service evidence also does not show symptoms related to prostate cancer until he was diagnosed with prostate cancer in August 2008. The Board emphasizes that this first indication of prostate cancer is approximately 49 years after he left active duty. Even though service connection for a chronic disability may be shown simply based on continuity of symptoms, such a large gap in treatment also weighs against the Veteran's claim that his prostate cancer disorder is related to service. The Board finds no continuity of symptomatology. Next, service connection may also be granted when the evidence establishes a medical nexus between active service or a service-connected disability and a current disability. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disabilities to active duty or to a service-connected disability. There is no clinical evidence of record to indicate that the Veteran's prostate cancer is related to active duty, and no medical professional has indicated that such a relationship exists. Moreover, a VA examiner who examined the Veteran in July 2009 provided the opinion that it was "less likely than not" that the Veteran's prostate cancer was etiologically related to his service-connected prostatitis. In providing that opinion, the examiner stated that she was not aware of any potential correlation between the two. The Board infers from that statement that the medical literature did not suggest such a relationship. In April 2016, the Veteran was afforded another VA genitourinary examination. The VA examiner noted that the Veteran was diagnosed with chronic prostatitis in 2000 and then prostate cancer in August 2008. Based on a review of the electronic claims file, to include all pertinent service and post-service medical records, the VA examiner opined that it was "less likely than not" that the Veteran's prostate cancer was proximately due to or the result of his service-connected prostatitis. Noting the length of time between the Veteran's exposure to ionizing radiation and his actual diagnosis of prostatitis and then later prostate cancer, the examiner indicated that current medical literature did not support a causal or aggravation relationship between chronic prostatitis and prostate cancer. The examiner noted that the baseline manifestations of the Veteran's non-service connected prostate cancer were fatigue, lethargy, weakness, hesitancy, dribbling, difficulty starting to stream, frequency of urination with leakage using an absorbent pad. The examiner also indicated that chronic prostatitis may cause recurrent infection and may never really be cured in a patient, including where a patient may be free of symptoms for weeks, months, and years. The examiner concluded that the prostate gland rarely returns to its normal state for a length of time regardless of how much it is treated. The Board finds that these examinations were adequate for evaluation purposes. Specifically, both examiners reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that either examiner was not fully aware of the Veteran's past medical history or misstated any relevant fact. The Board has also considered the statements made by the Veteran relating his prostate cancer to his ionizing radiation exposure. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to provide testimony regarding the etiology of prostate cancer. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because prostate cancer is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's prostate cancer are found to lack competency. Additionally, the Veteran has not alleged that he has had prostate cancer in service. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for prostate cancer. Therefore, the appeal is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for prostate cancer, to include as due to radiation exposure and to a service-connected disability, is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs