Citation Nr: 18149114 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 11-34 280 DATE: November 8, 2018 ORDER Service connection for squamous cell carcinoma of the tongue is denied. Service connection for chronic thrombocytopenia is granted. FINDINGS OF FACT 1. The Veteran was exposed to ionizing radiation in service due to proximity to open-air nuclear bomb testing. 2. The Veteran developed squamous cell carcinoma of the tongue many years after service, and it was not causally related to service. 3. The Veteran’s squamous cell carcinoma of the tongue was not causally related to ionizing radiation exposure in service. 4. The Veteran’s squamous cell carcinoma of the tongue was not caused or aggravated beyond its natural progression by service-connected skin cancers inclusive of squamous cell carcinoma of the neck. 5. The Veteran developed chronic thrombocytopenia as a result of ionizing radiation exposure in service. CONCLUSIONS OF LAW 1. The criteria for service connection for squamous cell carcinoma of the tongue have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303 (a), (b), 3.307, 3.309(a), 3.310, 3.311. 2. The criteria for service connection for chronic thrombocytopenia have been met. 38 U.S.C. §§ 1110, 1137, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303 (a), 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1947 to January 1950 and from October 1950 to October 1951. The Department of Veterans Affairs (VA) is grateful for his service. The Board notes at the outset that it erroneously characterized the claim for service connection for squamous cell carcinoma of the tongue in its December 2016 remand simply as “throat cancer.” However, the medical record clearly identifies the claimed cancer as squamous cell carcinoma of the tongue, with no throat cancer at issue and none identified in the medical record. The Board has accordingly more accurately styled the claim to avoid confusion. As the June 2017 VA examiner noted, the record reflected that the Veteran’s claimed cancer was a basaloid squamous cell carcinoma of the tongue and there was “[n]o diagnosis of throat cancer.” Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Cancers, inclusive of the Veteran’s claimed squamous cell carcinoma of the tongue, are among such chronic diseases under 38 C.F.R. § 3.309(a). Secondary service connection may be granted where the evidence shows that a chronic disability has been caused or aggravated beyond its natural progression by an already service-connected disability. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 1. – 2. Claims for service connection for squamous cell carcinoma of the tongue and thrombocytopenia. The Veteran has claimed entitlement to service connection for both squamous cell carcinoma of the tongue and thrombocytopenia as due to exposure to ionizing radiation in service. The Board in its December 2016 remand also raised a theory of secondary service connection for squamous cell carcinoma of the tongue, as caused or aggravated by his already service-connected skin cancers, including particularly an excised squamous cell carcinoma of the neck, on the theory that both the claimed cancer of the tongue and the cancer on the neck were squamous cell carcinomas, and they were close to each other on the body. Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd, 120 F.3d. 1239 (Fed. Cir. 1997). First, there are specific diseases that may be presumptively service connected if manifest in a radiation-exposed veteran. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). A "radiation-exposed" veteran is one who participated in a radiation-risk activity. A "radiation-risk activity" includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. 38 C.F.R. § 3.309 (d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. In this case, however, this presumption is not applicable, because neither squamous cell carcinoma of the tongue nor thrombocytopenia are radiogenic diseases as recognized within 38 C.F.R. § 3.309(d). Second, other "radiogenic" diseases, such as any form of cancer listed under 38 C.F.R. § 3.311 (b)(2), found five years or more after service in an ionizing radiation-exposed Veteran may also 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. Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311 (b)(4). 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; (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). When such 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). 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, "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes the following: all forms of leukemia, except chronic lymphocytic leukemia; thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311 (b)(2)(i)-(xxiv). Section 3.311(b)(5) requires that bone cancer become manifest within 30 years after exposure, posterior subcapsular cataracts become manifest within 6 months or more after exposure, leukemia become manifest at any time after exposure, and that other diseases specified in § 3.311(b)(2) become manifest 5 years or more after exposure. Third, direct service connection can be established by showing that the disease or malady was incurred during or aggravated by service, a task which includes the burden of tracing causation to a condition or event during service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board has already noted that the Veteran participated in the radiation risk activity Operation RANGER. See 38 C.F.R. § 3.309 (d)(3)(v)(D). Further, the record reflects development was undertaken pursuant to 3.311. In pertinent part, as detailed in an August 2010 VA memorandum, the Defense Threat Reduction Agency (DTRA) indicated that the doses of ionizing radiation that the Veteran could have received during his participation in this operation are not more than external gamma dose of 16 rem; external neutron dose 0.5 rem; internal committed alpha dose to the tongue 0.3 rem; internal committed beta plus gamma dose to the tongue 2 rem; and total beta plus gamma skin dose to any skin area 550 rem. Further, it was noted that the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) was used to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's cancers; and that the IREP calculated a 99th percentile value for the probability of causation of 98.15 percent for basal cell cancer of the skin and 11.92 percent for squamous cell cancer of the tongue (e.g., the claimed squamous cell carcinoma of the tongue). In view of the foregoing, the competent medical opinion provided was that that it was likely that the Veteran's basal cell cancer of the skin can be attributed to exposure to ionizing radiation while in military service, but that it was unlikely that his squamous cell cancer of the tongue can be attributed to same. An addendum VA examination was obtained in June 2017 based on review of the record. The examiner noted that the Veteran’s prior, service-connected cancers, including the squamous cell carcinoma of the neck, were skin cancers and were excised without evidence of their metastasis. The examiner then opined that it was not at least as likely as not that these service-connected skin cancers had caused or aggravated his claimed squamous cell carcinoma of the tongue. The examiner explained, in effect, that because these service-connected skin cancers were “removed locally” and there was no evidence of metastasis and no evidence of their having aggravated the squamous cell carcinoma of the tongue, it was not at least as likely as not that the service-connected squamous cell carcinoma of the neck had caused or aggravated his squamous cell carcinoma of the tongue. These findings and conclusions are consistent with treatment records reflecting that the Veteran’s service-connected basal cell cancer and service-connected squamous cell carcinoma of the neck were all skin cancers. Treatment records also do not indicate any link between these service-connected skin cancers and the claimed squamous cell carcinoma of the tongue. Thus, while the Veteran’s claimed squamous cell carcinoma of the tongue is recognized as radiation risk disease, obtained medical opinion evidence is against a causal link between the Veteran’s documented radiation exposure in service and his development of squamous cell carcinoma of the tongue. Obtained VA examination opinions are also against causation or aggravation of squamous cell carcinoma of the tongue by the Veteran’s service-connected skin cancers including his squamous cell carcinoma of the neck. The Veteran has not presented any favorable medical opinion evidence supporting a link between his radiation exposure in service or his service-connected skin cancers and his claimed squamous cell carcinoma of the tongue. Hence, the preponderance of the evidence is against the claim based on a link to ionizing radiation exposure or based on secondary service connection. 38 C.F.R. §§ 3.309, 3.310, 3.311. While the Veteran believes his squamous cell carcinoma of the tongue is related to ionizing radiation in service, the Veteran is not competent to provide a nexus opinion in this case. Questions of effects of varying levels of ionizing radiation on cellular tissue and their initiation or contribution to onset of cancerous processes are medically complex, requiring specialized education and knowledge beyond the scope of lay competence. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence on these questions. The record also does not support the Veteran’s squamous cell carcinoma of the tongue having developed in service or for years following service, and hence the preponderance of the evidence is against service connection for squamous cell carcinoma of the tongue on direct or first-year-post-service presumptive bases. 38 C.F.R. §§ 3.303, 3.307, 3.309. Because the preponderance of the evidence is against the claim for service connection for squamous cell carcinoma of the tongue based on all theories presented, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Unlike the claim for squamous cell carcinoma of the tongue, the Veteran has presented medical evidence supporting the claim for service connection for thrombocytopenia as due to ionizing radiation in service. As explained below, the Board finds that the evidence preponderates in favor of this claim. A May 2009 VA hematology/oncology note addressed findings of a bone marrow biopsy. The bone marrow smear was noted to be compatible with idiopathic thrombocytopenia purpura (“ITP”). However, also noted were “chromosome 7 and chromosome 14 abnormalities” which were “associated with MDS” (myelodysplastic syndrome). While medical personnel in some VA records addressed “immune thrombocytopenia purpura” (commonly referred to as “ITP”), actual medical findings were of “idiopathic thrombocytopenia purpura” (regrettably, also “ITP”). Immune thrombocytopenia purpura is noted to be a diagnosis of exclusion, meaning that it is arrived at by excluding other possible causes of the thrombocytopenia. A VA Environmental Health Service opinion was obtained in November 2017 which found that applicable literature reviewed, which consisted of a single cited text on medical effects of ionizing radiation, did not support that the low dose of whole-bode ionizing radiation to which the Veteran was estimated to have been exposed over the course of his exposure to five open-air atomic bomb detonations in 1951, would have caused ITP. However, this opinion neither considered nor addressed whether the Veteran may have had MDS rather than IDP, or whether the ionizing radiation to which the Veteran was exposed may have been more likely to have caused his thrombocytopenia as a result of his chromosomal abnormalities associated with MDS. Ionizing radiation exposure has been implicated in development of MDS. See, e.g., M. Iwanaga, W. Hsu, et. al., Rise of myelodysplastic syndromes in people exposed to ionizing radiation: a retrospective cohort study of Nagasaki atomic bomb survivors, 29 J Clin Oncol. 29(4), 428-434 (Feb 1, 2011). Because the implications or effects of the chromosomal abnormalities associated with MDS were not considered by the November 2017 VA Environmental Health Service opinion, and because the significance of these findings for purposes of ascertaining potential radiation-exposure etiology of the Veteran’s thrombocytopenia are unclear from the record, the Board must recognize that the VA Environmental Health Service opinion is potentially non-probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based on inaccurate factual basis not probative). Moreover, the text cited (Arthur Upton & Fred Mettler, Medical effects of ionizing radiation (Elsevier, 3rd edition, 2008)) by the VA Environmental Health Service speaks to the effects on bone marrow cell “injury” and the processes of development of cells immediately following the injury likely to result in quickly revealed impairments in the hemopoietic system, from 7 to 17 hours after damage for neutrophils to 10 days after injury for platelets. This fails to speak to chromosomal abnormalities and any interplay with radiation-induced genetic change, which may result in different effects from different dosages over different timelines than those addressed in the single summary research text cited by the Environmental Health Service. In other words, effects of genotoxic stress of ionizing radiation do not appear to have been adequately considered. See, e.g., Mykyta Sokolov & Ronald Neumann, Lessons Learned about Stem Cell Responses to Ionizing Radiation Exposures: A Long Road Still Ahead of Us, Int J Mol Sci 14(8), 15696-15723 (Aug 2013). The Veteran has provided a July 2016 letter from Dr. G.B.H., PhD., a retired research scientist formerly at a university department of oncology. The scientist notes, “It is well established that exposure to ionizing radiation impairs the formation of the cellular components of blood (hematopoiesis) by directly damaging the genetic material (DNA and RNA) of the hematopoietic stem cell development in the bone marrow [....] This can result in various malignant diseases [...] [including] thrombocytopenia (low platelet levels).” The scientist cites texts including those specifically addressing hematologic effects of ionizing radiation exposure (as contrasted with the single more general text cited by the VA Environmental Health Service). The scientist then notes the Veteran’s history of atomic radiation exposures in nuclear tests in 1951 including 550 rem estimated dosing and the Veteran’s history of basal cell carcinoma which VA has attributed to his radiation exposure in service. The scientist then concludes that “it would appear obvious that his current low platelet levels (less than 10,000, normal: 250,000) which presents him with a life-threatening situation, has to be attributed to the exposure received in the atomic blasts.” While the scientist G.B.H.’s assessments that the association “would appear obvious” and “has to be associated” are perhaps overly emphatic, his finding of an association appears based on more careful consideration of the circumstances of the case, specific medical knowledge, and citation to more specific medical or scientific literature than was the opinion of the VA Environmental Health Service. The scientist’s greater level of expertise, the Board believes, also weighs favorably. The Board accordingly concludes that the evidence preponderates in favor of a causal link between the Veteran’s ionizing radiation exposure in service and his thrombocytopenia. Service connection is accordingly warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechter