Citation Nr: 18156332 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 15-04 085 DATE: December 7, 2018 ORDER Entitlement to service connection for chronic myelogenous leukemia (CML), claimed as the result of ionizing radiation, is denied. FINDING OF FACT The Veteran's CML is less likely than not related to his period of active service, to include in-service ionizing radiation exposure. CONCLUSION OF LAW The criteria for service connection for CML, to include as due to ionizing radiation exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1963 to May 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned in March 2017. An August 2017 Board decision remanded the claim for referral to the Under Secretary of Health for preparation of a radiation dosage estimate and a causation opinion in accordance with 38 C.F. R. § 3.311. The claim is now returned to the Board for additional appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for CML, claimed as the result of ionizing radiation Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (2016). 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. 38 C.F.R. § 3.303(d). The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, listed in 38 C.F.R. § 3.309(a), will be service connected on a presumptive basis if they manifested to a compensable degree within one year after service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, if those same diseases are noted during service, continuity of symptomatology can show chronicity and subsequent manifestations of the same disease is presumed to be service connected. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, service connection 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 in 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. A “radiation-exposed veteran” is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. 38 C.F.R. § 3.309 (b)(i), (ii). Diseases presumptively service connected for “radiation-exposed” veterans under the provisions of 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309(d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract, bronchiolo-alveolar carcinoma, cancer of the bone, cancer of the brain, cancer of the colon, cancer of the lung, and cancer of the ovary. 38 U.S.C. § 1112(c)(2); 38 C.F.R. § 3.309(d). If a claimant does not qualify as a “radiation-exposed veteran” under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311. These developmental procedures are indicated when the Veteran 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: all forms of leukemia, except chronic lymphatic (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). Under the special development procedures in § 3.311(a), dose data will be requested from the Department of Defense in claims where a radiogenic disease became manifest after service and was not manifest to a compensable degree within the presumptive periods of § 3.307 or § 3.309. 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 dose date will be requested from the Department of Defense. 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. Then, 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). The regulation also provides for an advisory medical opinion from the Under Secretary of Benefits. 38 C.F.R. § 3.311(b). 3.311(c). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). In this case, the Veteran was diagnosed with CML in 2009. He claims the condition is related to his exposure to ionizing radiation in service. He testified that he was stationed aboard the USS Holland, a sub-tender. His duties included serving as an investigator during fire drills. He described conducting inspections during fire drills which brought him into close proximity to nuclear weapons stored on the ship. He used a Geiger counter during the drills and recalled that it “would go crazy” on detecting increased levels of radiation. Leukemia, including CML, is among the chronic diseases which may, if manifest to a compensable degree within one year after separation from service, be presumed to be incurred in service. See 38 C.F.R. § 3.307(a)(3), 3.309(a). The Veteran’s CML was diagnosed more than 50 years after he left active service. There is no indication of this disease in service or at any time prior to the 2009 diagnosis. Continuity of symptomatology is not shown. The presumption of service connection, afforded to chronic diseases, is not for application. Id. Presumptive service connection is provided for leukemia, including CML, when the condition is diagnosed in a “radiation-exposed veteran.” 38 C.F.R. § 3.309(d)(2). A “radiation-exposed veteran” is one who participated in specific enumerated “radiation-risk” activities. 38 C.F.R. § 3.309(d)(3)(i). These activities include participation in a test involving the atmospheric detonation of a nuclear device, service during the occupation of Hiroshima or Nagasaki, Japan following the end of World War II, and other specified duties. See 38 C.F.R. § 3.309(d)(3)(ii). The Veteran does not assert, and the evidence of record does not indicate, he participated in any “radiation-risk activity” as described in the regulation. The presumption of service connection for leukemia under 38 C.F.R. § 3.309(d) is not for application. As discussed in the Board’s August 2017 decision CML is a “radiogenic disease” afforded the special development assistance prescribed by 38 C.F.R. § 3.311 and discussed above. On remand, an August 2018 memorandum was prepared by a Health Physicist and reviewed by the Deputy Chief Consultant, Post Deployment Health Service on behalf of the Under Secretary. In preparing the memorandum, the Veteran’s service records and records from the USS Holland were evaluated. The authors indicated that there were no reports indicating the Veteran was exposed to ionizing radiation and there was no evidence of a form DD 1141 (Record of Occupational Exposure to Ionizing Radiation). Nonetheless, giving the Veteran the benefit of the doubt, a dose assessment of 2.5 rem over the Veteran’s years of service was assigned based on the Veteran’s claim of exposure (this is in spite of the Navy records indicating an exposure of zero for the Veteran). The August 2018 memorandum cited to the PS010-3 position statement from the Health Physics Society, “Radiation Risk in Perspective”, revised in May of 2016, and noted that the position statement indicates that the average annual equivalent dose from natural background radiation in the United States is about 3 mSv [0.3 rem] and that a person might accumulate an equivalent dose from natural background radiation of about 50 mSv [5 rem] in the first 17 years of life and about 250 mSv [25 rem] during an average 80-year lifetime. The position paper stated that substantial and convincing scientific data show evidence of health effects following high-dose exposures (many multiples of natural background). The position paper noted, however, that below levels of about 100 mSv [10 rem] above background from all sources combined, the observed radiation effects in people are not statistically different from zero. The authors of the August 2018 memorandum concluded that since the Veteran’s assigned does of 2.5 rem did not exceed 100 mSv (10 rem) above natural background, it is unlikely that CML was caused by exposure to ionizing radiation during military service. Although the Board does not question the Veteran’s sincerity in his belief that he was exposed to high levels of radiation in service, he is not competent to provide a dose estimate of radiation exposure during military service, nor is he competent to provide an opinion on a complex medical issue such as the etiology of his CML. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran provided August 2016, July 2017, and October 2018 statements from his VA treating physician. The final letter of October 2018 was submitted after the September 2018 supplemental statement of the case and waiver of review by the RO was not provided; however, the information presented in the October 2018 letter is redundant of the previously submitted letters from the same author which were considered by the RO. In these letters, the VA treating physician asserts the Veteran has a May 2009 diagnosis of “Philadelphia chromosome positive type Chronic Myelogenous Leukemia. He has history of exposure to radiation for four years from 1963 to 1967 while he was working in the US Navy. Radiation exposure is a measure etiology in causation of Chronic Myelogenous Leukemia.” The VA physician is competent to provide an etiology opinion based on his training and it is generally accepted that radiation exposure is a risk factor for development of CML. However, the opinion is not probative evidence because it only vaguely refers to the Veteran being exposed to radiation based on his military service and does not indicate how the physician determined that the Veteran was exposed to a certain level of radiation in service. He notes the Veteran’s 4 years of naval service but makes no reference to the circumstances of exposure or to level of the Veteran’s radiation exposure in service. This opinion is not fully probative of the issue at hand because the extent of the Veteran’s exposure to ionizing radiation is not considered. In contrast, the Deputy Chief Consultant opines it “is unlikely that [CML] was caused by exposure to ionizing radiation during military service.” This October 2018 opinion fully discusses the Veteran’s diagnosis, the details of his service, and the extent of his exposure to ionizing radiation in service. The opinion was prepared by a health physicist and approved by a medical doctor. These individuals are competent to provide an etiology opinion. The memorandum provided a full and credible review of the Veteran’s claims file and service records. Accordingly, this opinion is entitled to great probative weight. The Board finds the preponderance of the evidence is against finding a nexus between the Veteran’s CML and his military service; as such, entitlement to service connection for CML, to include as due to exposure to ionizing radiation, is not warranted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel