Citation Nr: 18144931 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 17-33 640 DATE: October 25, 2018 ORDER Entitlement to service connection for prostate cancer due to radiation exposure is denied. FINDINGS OF FACT 1. The Veteran was a participant in atmospheric nuclear test detonations in 1957 with an estimated exposure to ionizing radiation of 16 rem of external gamma dose, 0.5 rem of external neutron dose, 0 rem of internal committed dose to the prostate (alpha), and 1 rem of internal committed dose to the prostate (beta + gamma), totaling 17.5 rem. 2. The Veteran's prostate cancer did not incur in or was aggravated by military service and it is not otherwise etiologically related to service, to include in-service radiation exposure. CONCLUSION OF LAW The criteria for service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1955 to April 1958. In September 2017, the Veteran testified at a Board hearing. The transcript is of record. In February 2018, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for prostate cancer due to radiation exposure The Veteran seeks service connection for prostate cancer due to radiation exposure that occurred while participating in Operation Plumbbob during active service. Service connection for a condition, which is claimed to be attributable to ionizing radiation exposure during service, may be established in one of three different ways. Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff’d sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997). A “radiation-exposed veteran” is one who participated in a radiation-risk activity which, by definition includes participants in atmospheric nuclear weapons test; thus, the Veteran is a “radiation-exposed veteran.” 38 C.F.R. § 3.309 (d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Under 38 C.F.R. § 3.309 (d), service connection is presumed for certain diseases if they become manifest in a "radiation-exposed veteran," as defined in 38 C.F.R. § 3.309 (d)(3)(i). The Veteran has a current diagnosis of prostate cancer, which is not a disease entitled to presumption service connection per 38 C.F.R. § 3.309 (d); thus, service connection is not warranted under this theory and will not be discussed. The second way is to establish service connection under 38 C.F.R. § 3.311 if the disability is a “radiogenic disease.” 38 C.F.R. § 3.311 (b) provides a list of “radiogenic diseases”, which includes prostate cancer, then service connection is established provided that certain conditions specified in that regulation are met. The evidence must show the following: (1) the veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and (3) such disease first became manifest within a period specified by the regulations. 38 C.F.R. § 3.311 (b). If any of the foregoing three requirements has not been met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311 (b)(1)(iii). Finally, a veteran can establish direct service connection for disability due to exposure to ionizing radiation with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 104 (Fed. Cir. 1994). The Veteran’s case was submitted to the Defense Threat Reduction Agency (DTRA) for a dose estimate. The DTRA determined that the Veteran had an external gamma dose of no more than 16 rem, an external neutron dose of .5 rem, an internal committed dose to the prostate (alpha) of 0 rem, and an internal committed dose to the prostate (beta + gamma) of 1 rem. An opinion was requested from the Under Secretary of Health, who had the Deputy Chief Consultant, Post Deployment Health Service prepare an opinion. The Deputy Chief opined that it is not likely that the Veteran’s prostate cancer was caused by exposure to ionizing radiation in military service. The opinion cited the December 21, 2006 Memorandum stating that the adjusted total prostate dose for Nevada Test Site participants is 19 rem. The examiner reported that based on a dose of 19 rem, using the Interactive Radio Epidemiological Program (IREP) to estimate the likelihood that the Veteran’s cancer is related to exposure to ionizing radiation, the program calculated a 99th percentile value for the probability of causation of 19.79 percent. As the higher dose of 19 rem still resulted in a probability of causation that is less than 50 percent, a nexus between the Veteran’s ionizing radiation exposure and prostate cancer was not shown. Therefore, service connection under 38 C.F.R. § 3.311 is not warranted. The Veteran may still establish service connection with proof of direct causation. See Combee, 34 F.3d 1039, 104. The record contains a current diagnosis of prostate cancer; however, the Veteran's service treatment records do not contain any diagnoses of or treatment for prostate cancer. Furthermore, it is not contended by the Veteran that his prostate cancer began during active service. According to the record, the Veteran’s onset of prostate cancer occurred approximately 54 years after his radiation exposure. The Undersecretary of Health’s opinion that the Veteran’s prostate cancer was less likely than not the result of ionizing radiation was based on objective test results that used a worst-case scenario exposure situation. This scenario assumed the Veteran was exposed to the maximum possible radiation present from the testing. As such, the Board finds this opinion probative. The record also contains a statement from Dr. S. B. that states that prostate cancer has a higher incidence rate in patients exposed to radiation. However, this opinion does not provide a rationale linking the Veteran’s prostate cancer to his radiation exposure in service. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, this opinion has no probative value. The Board carefully considered the Veteran's lay statements, including his description of exposure during his September 2017 hearing. At the hearing, the Veteran testified that he was exposed to more radiation than the average participant due to his continued exposure to the dust from the explosion for several days afterwards. The Board notes the Veteran is competent to describe his symptoms and the events that occurred during service; however, the Veteran is not competent to provide an opinion as to the etiology of his prostate cancer. This is a complex medical issue that is not capable of lay observation and requires specialized knowledge and medical expertise. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has not submitted any competent evidence documenting that the amount of radiation he was exposed to. He is not competent to provide an estimate of the amount of radiation he was exposed to during the testing. This requires specialized instruments. The September 2018 advisory opinion took into account exposure to residual radiation after the explosion. This opinion did not link prostate cancer to radiation exposure. The Board is sympathetic to the Veteran's reports of being exposed to radiation from nuclear testing. Unfortunately, there is no competent evidence of record which demonstrates that he was exposed to more radiation that that conceded in the official records. The Veteran reports he was required to stay around the test center for a period of time. He has not been able to provide competent evidence of the actual amount of radiation he was exposed to. He testified that he did not wear a dosimetry badge during the testing and he had no idea how much radiation he received. The Board has also reviewed the literature provided by the Veteran pertaining to nuclear weapon testing. While these articles warn of the dangers of nuclear weapons, they do not provide insight as to a possible link between radiation exposure and prostate cancer. The articles also do not provide any evidence of an accurate does estimate of radiation that the Veteran was exposed to which was in excess of that already conceded. As such, the articles have no probative value for the case at hand. (Continued on the next page)   As such, the Board finds the evidence insufficient to establish service connection for prostate cancer. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel