Citation Nr: 18143153 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 13-25 150A DATE: October 18, 2018 ORDER Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for left-sided acoustic neuroma is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a disability manifested by balancing problems is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. Prostate cancer is not etiologically related to service, including exposure to ionizing radiation or non-ionizing radiation in service. 2. Left-sided acoustic neuroma is not etiologically related to service, including exposure to ionizing radiation or non-ionizing radiation in service. 3. Bilateral hearing loss is not etiologically related to service or to a service-connected disability. 4. A disability manifested by balancing problems is not etiologically related to service or to a service-connected disability. 5. Tinnitus is not etiologically related to service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. § 3.303, 3.307, 3.309, 3.311. 2. The criteria for service connection for left-sided acoustic neuroma have not been met. 38 U.S.C. § 1110, 5103, 5103A, 5107; 38 C.F.R. § 3.303, 3.307, 3.309, 3.311. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for service connection for a disability manifested by balancing problems have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 5. The criteria for service connection for tinnitus have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1963 to June 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Service Connection 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for left-sided acoustic neuroma. Generally, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain chronic disabilities, to include malignant tumors, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With “chronic disease” shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The showing of a “chronic disease” in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The term “chronic disease”, whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran claims entitlement to service connection for prostate cancer and left-sided acoustic neuroma on the basis that he was exposed to ionizing and non-ionizing radiation in service. Service connection for conditions claims based on exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability was otherwise the result of active service. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. Certain conditions are presumed to be service-connected when they manifest in “radiation-exposed veterans.” 38 C.F.R. § 3.309(d)(1), (2). However, the term “radiation-exposed veterans” applies only to veterans who participated in specific radiation-risk activities, including onsite participation in a test involving atmospheric detonation of a nuclear device; certain service in or near Hiroshima or Nagasaki, Japan; service on the grounds of a gaseous diffusion plant in Paducah, Kentucky, Portsmouth, Ohio or in the area identified as K25 at Oak Ridge, Tennessee; service on Amchitka Island, Alaska; and service that would qualify for inclusion as a member of the Special Exposure Cohort if performed as an employee of the Department of Energy. 38 C.F.R. § 3.309(d)(3). The Veteran has not alleged, and his records do not reflect, that his service included any of the above circumstances. Therefore, he is not a “radiation-exposed veteran” within the meaning of the regulations, and the associated presumptions are not applicable. Moreover, prostate cancer and acoustic neuroma are not among the conditions listed as presumed to be related to ionizing radiation exposure. Nevertheless, though the Veteran does not qualify as a “radiation-exposed veteran” under 38 C.F.R. § 3.309(d)(3), he may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if he suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, “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). Under the special development procedures in § 3.311(a), dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the Veteran’s exposure to radiation. These records normally include, but may not be limited to, the Veteran’s Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the Veteran’s radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). In this case, at the request of the Director of Compensation Service, the Director of the Post 9/11 Era Environmental Health Program issued an advisory opinion on the Veteran’s exposure to radiation in May 2017. See May 2017 Memorandum from Director of Compensation Service Regarding Radiation Review Under 38 C.F.R. § 3.311. The Director of the Post 9/11 Era Environmental Health Program found that it was unlikely that the Veteran’s acoustic neuroma or prostate cancer resulted from exposure to ionizing or non-ionizing radiation in service. The Director stated that extensive research led to the conclusion that some low-energy ionizing radiation was present in the power supply tubes for the HAWK radar system and cited to a paper by Dr. J.B. estimating cumulative average doses of 10 rem for individual radar soldiers. Based on this, the Director estimated the Veteran’s total ionizing radiation dose to be 2.0 rem. In opining that the Veteran’s acoustic neuroma and/or prostate cancer were unlikely to have been caused by exposure to ionizing radiation, the Director used the 2.0 rem total occupational radiation dose and cited to a position statement from the Health Physics Society, which stated that, in cases of exposure below 5 to 10 rem (above that received from natural sources), risks of health effects are either too small to be observed or are nonexistent. Since the Veteran’s radiation dose did not exceed these values, the Director concluded that it was unlikely that the Veteran’s acoustic neuroma and/or prostate cancer could be attributed to ionizing radiation exposure from military service. With respect to non-ionizing radiation, the Director noted that the consensus of scientific advisory bodies is that there are no long-ter effects from low-level exposures to radiofrequency or non-ionizing radiation. The Director also cited an epidemiological study of Navy personnel working with radar systems that did not find any adverse health effects that could be attributed to non-ionizing radiation. Based on these studies, the Director concluded that it was unlikely that the Veteran’s acoustic neuroma and/or prostate cancer were caused by exposure to non-ionizing radiation while in military service. Accordingly, the Director of Compensation Service adopted these findings and echoed the conclusion that “there is no reasonable possibility that the Veteran’s acoustic neuroma or prostate cancer resulted from radiation exposure in service.” See May 2017 Correspondence from Director of Compensation Service Regarding Radiation Review Under 38 C.F.R. § 3.311. In reaching these conclusions, the Director considered the Veteran’s post-service employment as a cable television amplifier repairman as well as his gender and lack of family history of cancer. See May 2017 Memorandum from Director of Compensation Service Regarding Radiation Review Under 38 C.F.R. § 3.311; see also 38 C.F.R. § 3.311(e) (noting that consideration must be given to (1) “The probable dose, in terms of dose type, rate and duration as a factor in inducing the disease, taking into account any known limitations in the dosimetry devices employed in its measurement or the methodologies employed in its estimation;” (2) “The relative sensitivity of the involved tissue to induction, by ionizing radiation, of the specific pathology;” (3) “The veteran’s gender and pertinent family history;” (4) “The veteran’s age at time of exposure;” (5) “The time lapse between exposure and onset of the disease; and” (6) “The extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to development of the disease.”). Additional factors the Director considered include the Veteran’s estimated dosage of 2.0 rem, the Veteran’s age of 17 years at the time of exposure, and the time lapse of 43 and 45 years between exposure and the respective onsets of acoustic neuroma and prostate cancer. See 38 C.F.R. § 3.311(e). Accordingly, even though the Director did not explicitly address all six factors, the Board accepts the findings as highly probative, as they reflect consideration of the enumerated factors and are supported by the express conclusion that “there is no reasonable possibility that the Veteran’s acoustic neuroma or prostate cancer resulted from radiation exposure in service.” See Hilkert v. West, 12 Vet. App. 145, 149-50 (1998); 38 C.F.R. § 3.3111(c)(1)(ii). Therefore, since the provisions of 38 C.F.R. § 3.311 have not been met, and in light of the aforementioned medical advisory opinion, service connection based on the procedural advantages of 38 C.F.R. § 3.311 is not warranted. The Board is also obligated to consider service connection without reference to the radiation regulations, 38 C.F.R. §§ 3.309 (d), 3.311. In this regard, the United States Court of Appeals for the Federal Circuit in Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), determined that the regulations governing presumptive service connection for radiation exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. Accordingly, the Board will proceed to evaluate the Veteran’s claim under the regulations governing direct service connection. See Combee, 34 F.3d at 1043-1044; see also 38 C.F.R. § 3.303(d). Treatment records show that the Veteran has been diagnosed with acoustic neuroma and prostate cancer, for which he subsequently underwent a radical prostatectomy in June 2009. Therefore, the first element of service connection has been met. Concerning in-service incurrence, the Veteran has not alleged that these conditions or any associated symptoms manifested during service. However, the Board notes that the Veteran’s service treatment records show treatment for small, subcutaneous cysts in and on both ears in July 1963, April 1965, and December 1965. On separation examination in March 1966, the Veteran reported a history of “tumor, growth, cyst, cancer” and noted bilateral ear tumors but his ears were normal on clinical evaluation. The Veteran’s service treatment records do not reflect any complaints, treatment, or diagnoses of prostate conditions, and his genito-urinary (G-U) system was clinically evaluated as normal at separation. Of record is an October 2012 VA examination and opinion from a VA physician opining that the Veteran’s acoustic neuroma was not caused by or a result of the variously diagnosed in-service ear tumors and cysts. The examiner noted that all of the in-service diagnoses involved the outer ear which is the auricle and external auditory canal whereas his acoustic neuroma is a tumor arising from the vestibulo-cochlear nerve in the internal auditory canal. The examiner also stated that the various diseases of the outer ear diagnosed in-service are not known to be a risk factor for acoustic neuroma and that the Veteran’s left acoustic neuroma was not in any way related to the in-service outer ear disorder. With respect to in-service injury, as discussed, even though no chronic or recurring prostate disabilities were documented during the Veteran’s active duty service, the Veteran was nonetheless exposed to ionizing radiation. However, as noted, the Director of the Post 9/11 Era Environmental Health Program determined that the Veteran’s acoustic neuroma and prostate cancer were not related to the radiation exposure that he experienced during service. Similarly, the Director of Compensation Services determined that there was no reasonable possibility that the Veteran’s acoustic neuroma or prostate cancer resulted from exposure to radiation in service. The Veteran submitted a May 2010 statement from Dr. T.B. stating that the Veteran’s ionized radiation exposure during his military service could have led to his current acoustic neuroma. Dr. T.B. noted that the Veteran was exposed to cancer-causing radiation in-service and that, though acoustic neuromas are not cancerous tumors, there are reports that acoustic neuromas may be related to ionizing radiation. Dr. T.B. cited a December 2007 article suggesting a possible relationship. The Veteran has also submitted several statements from Dr. J.B., who has a Ph.D. in nuclear physics, generally stating that the Veteran’s acoustic neuroma may be due to his exposure to ionizing or non-ionizing radiation associated with radar operation. In a November 2014 email, Dr. J.B. stated that “[b]ased on the associations found between microwave exposure and the risk of acoustic neuroma, and given the findings of increased mortality among military radar operators… I believe there is a good chance I would find that your acoustic neuroma is at least as likely as not to be associated with your military service…” See November 2014 correspondence. In a March 2016 email, Dr. J.B. stated that a number of studies have linked microwave radiation to acoustic neuroma. In that same email, Dr. J.B. referenced the abovementioned study of Naval personnel and other VA publications. Dr. J.B. specifically stated, “I do not know anything about past handling of microwave claims by the VA, let alone claims about acoustic neuroma and microwaves. Nevertheless, I presume you are entitled to a decision based on the claim of causation by non-ionizing radiation… there seems to be a clear nexus between your current disability related to hearing/balance and your in-service events.” See March 2016 correspondence. The May 2017 opinion from the Director of the Post 9/11 Era Environmental Health Program refuted both of these opinions, noting that the exposure received from ionizing and non-ionizing radiation are very low, if present at all, in this case and noting that the opinions did not discuss how the Veteran’s specific exposure would be the cause of acoustic neuroma and prostate cancer. The Board acknowledges the opinions of Drs. T.B. and J.B. linking the Veteran’s acoustic neuroma to his military service, to include any ionizing or non-ionizing radiation exposure therein. However, the use of speculative phrases including “there seems to be,” “I believe,” and “there is a possibility” makes the doctors’ opinions speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor’s statement framed in terms such as “could have been” is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (“may or may not” language by physician is too speculative). Furthermore, these opinions provide little rationale for the opinions reached and therefore, are of little probative value. The Board has considered the Veteran’s statements that his disabilities are the result of his in-service ionizing and non-ionizing radiation exposure and acknowledges that lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the Veteran has not demonstrated any specialized knowledge or expertise to indicate he is capable of rendering a competent medical opinion. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the etiology of acoustic neuroma and prostate cancer falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). See also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Based on the above, the Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran’s acoustic neuroma, prostate cancer and his military service, to include exposure to ionizing and non-ionizing radiation. The claim for entitlement to service connection for acoustic neuroma and prostate cancer must be denied. There is no reasonable doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for a disability manifested by balancing problems. 5. Entitlement to service connection for tinnitus. Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends that his bilateral hearing loss, tinnitus, and disability manifested by balancing problems are etiologically related to his acoustic neuroma. The Board may not grant service connection for bilateral hearing loss, tinnitus, and a disability manifested by balancing problems on a secondary basis, because the claimed primary disability has not been service-connected. As to direct service connection for hearing loss and tinnitus, the Veteran was afforded a VA audio examination in September 2012. Audiometry revealed that the Veteran’s puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 10 40 40 50 LEFT 100 100 95 90 His right ear puretone average was 35 decibels and his left ear puretone average was 96 decibels. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 0 percent in the left ear. The Veteran also reported recurrent tinnitus since he was diagnosed with his left acoustic neuroma. At that time, the VA examiner stated that he could not provide etiology opinions for hearing loss or tinnitus related to the acoustic neuroma without resorting to speculation and that an examination from an ENT was needed. After a separate VA ear condition examination in October 2012 with an ENT, the VA examiner who conducted the September 2012 examination opined in March 2013 that the Veteran’s current hearing loss and tinnitus were not related to noise exposure in-service but that his left ear hearing loss was consistent with hearing loss associated with an acoustic neuroma, not excessive noise exposure. The examiner also opined that the Veteran’s right ear hearing loss and tinnitus were more consistent with the general aging process. With respect to a disability manifested by balancing problems, in August 2009 the Veteran reported experiencing vertigo since the acoustic neuroma. It was noted in an October 2012 VA examination with an ENT physician that, other than the diagnosed left ear acoustic neuroma, the Veteran did not have any ear or peripheral vestibular condition, specifically peripheral vestibular disorder. Thus, the Board finds that bilateral hearing loss, tinnitus, and disability manifested by balancing problems are not related to the Veteran’s service or a service-connected disability, and concludes that they were not incurred in or aggravated by active service and are not proximately due to, the result of, or aggravated by, a service-connected disability. As service connection for the acoustic neuromas was denied above, secondary service connection is denied as a matter of law. Accordingly, the Board finds that the preponderance of the evidence is against the claims for entitlement to service connection for bilateral hearing loss, tinnitus, and a disability manifested by balancing problems, including as secondary to any service-connected disability. Therefore, the claims must be denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel