Citation Nr: 18157379 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 14-15 393A DATE: December 12, 2018 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in January 2006, and the immediate cause of death was probable pulmonary embolism with contributing conditions to include prostate cancer with metastases. 2. At the time of his death, service connection was in effect for hemorrhoids. 3. The Veteran’s prostate cancer did not have its onset in service or manifest to a compensable degree within one year of separation from service, is not otherwise related to service, to include ionizing radiation exposure therein. 4. The cause of the Veteran’s death has not been shown to be etiologically related to any disease, injury, or event in service, to include ionizing radiation exposure therein. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1951 to March 1955 and December 1955 to March 1972. He died in January 2006. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the appellant testified before the undersigned Veterans Law Judge. In December 2017, the Board remanded the appeal for additional development. The appellant seeks to establish service connection for the cause of the Veteran’s death. She asserts that the Veteran was a member of the Air Force Technical Application Center (AFTAC), his duties included collecting radioactive data, and that his in-service exposure to radiation caused or contributed to his death from prostate cancer. See March 2017 Board Hearing Transcript at 3; January 2011 written statement. Service connection for the cause of the Veteran’s death can be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death. 38 C.F.R. § 3.312(a); see 38 U.S.C. § 1310; see also 38 U.S.C. §§ 1110, 1112, 1131. A service-connected disability is the principal cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Id. Although there are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. Id. Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. Id. In this case, the Veteran’s death certificate states that he died in January 2006 and that the immediate cause of death was probable pulmonary embolism with contributing conditions to include prostate cancer with metastases. At the time of his death, service connection was in effect for hemorrhoids, rated as noncompensable. As to whether a service-connected disability caused or contributed to the Veteran’s death, there is no competent evidence of record to link the Veteran’s cause of death to his service-connected hemorrhoids, and the appellant has not made such contentions. Thus, service connection on this basis is not warranted. In deciding the claim for service connection for the cause of the Veteran’s death, the Board must also consider whether the disabilities that caused the Veteran’s death may be service-connected. The Board will focus its analysis on whether the Veteran’s prostate cancer may be service-connected, as the appellant has not alleged that the pulmonary embolism was related to service and there is no suggestion in the record that the pulmonary embolism was somehow related to service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the claimant’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a disability claimed to result from radiation exposure during service can be demonstrated in one of three ways. First, there are 21 types of cancer that are presumptively service connected when the claimant is a “radiation-exposed veteran” within the meaning of 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Second, 38 C.F.R. § 3.31(b) provides a list of “radiogenic diseases” that are eligible for service connection provided that certain conditions are met. Third, direct service connection can be established. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); Davis v. Brown, 10 Vet. App. 209, 211 (1997). Section 3.311 provides special procedures for VA to follow for those veterans seeking compensation for diseases related to exposure to radiation in service. First, it must be established that the veteran suffers from a radiogenic disease. 38 C.F.R. § 3.311(b)(2). The disease must manifest within a specified time period; in this case, “5 years or more after exposure.” 38 C.F.R. § 3.311(b)(5)(iv). Once established, VA must obtain a dose assessment. 38 C.F.R. § 3.311(a) (“In all claims in which it is established that a radiogenic disease first became manifest after service... and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses”). After it is determined from the dose assessment that the veteran was exposed to radiation, the RO is then required to refer the case to the Under Secretary for Benefits for further consideration. Hilkert v. West, 12 Vet. App. 145, 148 (1999) (en banc), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table); 38 C.F.R. § 3.311(b). In addition to the laws and regulations cited above, service connection may also be granted as a matter of presumption. Significantly, certain chronic diseases, such as malignant tumors, may be service-connected if manifest to a degree of 10 percent within one year of service discharge. 38 C.F.R. §§ 3.307, 3.309. Initially, the Board notes that the Veteran’s military personnel records support that he participated in Operation IVY conducted at the Pacific Proving Ground from August 1952 to December 1952 and Operation Milrow in October 1969. He was diagnosed with prostate cancer in October 1996. The Veteran’s participation in Operation IVY constitutes participation in a radiation-risk activity pursuant to 38 C.F.R. §§ 3.309(d)(3)(v)(H). However, prostate cancer is not among the listed diseases specific to radiation-exposed veterans. See 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d)(2). The appellant asserts that the Veteran had lung and bladder cancer, which would warrant service connection under 38 C.F.R. § 3.309(d); however, the evidence is against the claim. See September 2012 Notice of Disagreement (NOD). The initial October 1996 pathology report confirmed adenocarcinoma of the prostate. Subsequent private treatment records show metastases in the lungs and bladder. A December 2001 pathology report confirmed primary prostate cancer. Thus, the evidence establishes that the Veteran had primary prostate cancer that metastasized to his bladder and lungs, not a separate form of cancer. See Monts v. Brown, 4 Vet. App. 379, 381 (1993) (metastasis is the transfer from an original site of lesion of a disease such as cancer to another part of the body with development of a similar lesion). Therefore, presumptive service connection is not warranted under 38 C.F.R. §§ 3.309(d). The Board notes that although presumptive service connection cannot be established for prostate cancer under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d), it is a “radiogenic” disease that manifested 5 years or more after exposure under 38 C.F.R. § 3.311(b). See 38 C.F.R. § 3.311(b)(2). In June 2011, following a review of historical military documentation, flight records, and dosimetry records the Department of the Air Force, AFTAC, determined that the Veteran may have participated in two non-US tests by providing support to aerial sampling missions. AFTAC determined that the Veteran’s total effective dose equivalent (TEDE), as a sum of his external and internal dose calculated, was approximately 126.58 mrem. In August 2011, following a review of the Veteran’s Cumulative Occupational Exposure History to Ionizing Radiation from November 1964 to January 1973 (to include the time frame of Operation Milrow), the Department of the Air Force determined that the Veteran’s TEDE, as a sum of his Air Force Master Radiation Exposure Registry (MRER) records and AFTAC’s dose estimate was 1.439 rem. In November 2011, the Defense Threat Reduction Agency (DTRA) established that the Veteran’s participation in Operation IVY in 1952 could have received no more than external gamma dose 18 rem; external neutron dose 0.5 rem; internal committed dose to the prostate (alpha) 4.5 rem; internal committed dose to the prostate (beta plus gamma) 2 rem. In March 2012, VA’s Post 9-11 Environmental Health Program Director deemed there to be no reasonable possibility that the Veteran’s prostate cancer with metastasis to lungs and bladder could be attributed to his radiation exposure in service. In reaching this conclusion, the physician assumed a total ionizing dose of radiation of 18 rem in 1952 and 1.41 rem in 1964 and used a matrix developed by the National Institute of Occupational Safety and Health (NIOSH) that analyzes the probability that certain cancers were caused by exposure to ionizing radiation. In applying the Veteran’s exposure history and cancer information to this matrix, the Director of the Post 9-11 Era Environmental Health Program also allowed for certain assumptions that would tend to increase the probability of causation. Nevertheless, the results indicated that it was unlikely that the Veteran’s prostate cancer was attributable to his radiation exposure while in the military. The program calculated a 99th percentile value for the probability of causation for prostate cancer of 28.28 percent. Accordingly, in April 2012, the Director for Compensation Service, adopted the findings of the Director of the Post 9-11 Era Environmental Health Program and echoed the conclusion that there is no reasonable possibility that the Veteran’s prostate cancer was the result of exposure to ionizing radiation. In response to the appellant’s assertion that the Veteran’s full radiation exposure was not reviewed to include Operation Milrow, the RO sought a revised radiation dose from DTRA. In April 2014, DTRA determined that the historical records did not document the Veteran’s participation in Operation Milrow and that his Record of Occupational Exposure to Ionizing Radiation indicated that he was routinely monitored from 1968 to 1972. As such, no additional radiation dosage was added. In December 2017, the Board determined that the April 2014 DTRA report was based on an inaccurate factual premise (no participation in Operation Milrow) and requested a revised radiation dose estimate on remand. In September 2018, the DTRA determined that while service personnel records documented the Veteran’s participation in Operation Milrow, he was monitored by film badge, and his DD 1141 indicated that from June 2 to October 3, 1969, he received a total exposure dose (beta, gamma, and neutron) of 0.000 rem. This dose is inclusive of Operation Milrow conducted on October 2, 1969. Thus, DTRA determined that no additional change to the dose estimate based on participation in Operation Milrow was warranted and reiterated that his accumulated radiation dose for 1965 to 1972 is 1.425. See also October 2018 Report of General Information. In January 1997, the Veteran indicated that it was common practice to dispose of dosimeters if he believed he was over exposed to radiation because he would be grounded and lose flight pay. See also May 2017 R.S. letter. However, neither the appellant nor the Veteran, during his lifetime, have submitted a dose estimate from a credible source showing a material difference with the dose data derived from official military records. The Board presumes that his radiation exposures were properly documented. See Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (there is a presumption of regularity that attends the administrative functions of the government). The Board is responsible for weighing the evidence of record and affords greater probative value to the DTRA findings, which are based on documentation, than the Veteran’s and appellant’s allegation without any evidence to support such. The Board finds that while the directives under 38 C.F.R. § 3.311(e) have been essentially met, in light of the aforementioned medical advisory opinion by the Director of Compensation and the Director of the Post 9-11 Era Environmental Health Program, service connection based on the procedural advantages of 38 C.F.R. § 3.311 is not warranted. As noted above, the Veteran may establish service connection on a direct service connection basis. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As previously noted, the Veteran had a diagnosis of prostate cancer, satisfying element one of service connection. Concerning in-service incurrence, the appellant does not assert that the Veteran had a disorder of the prostate during service. The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis related to prostate cancer. Furthermore, the Veteran’s October 1971 separation digital examination of the prostate was normal. With respect to in-service injury, as discussed, although no chronic or recurring prostate disability was documented during the Veteran’s active duty service, the Veteran was nonetheless exposed to ionizing radiation. Thus, the second element of service connection is also established. The Veteran’s initial prostate cancer diagnosis was rendered in October 1996 (24 years after service), following complaints of recurring balanitis and prostatitis. Thus, there is no competent evidence of a malignant tumor (prostate cancer) in service or within one year following discharge from service to allow for presumptive service connection, and the appellant does not contend otherwise. 38 U.S.C. §1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, the appellant does not contend that the Veteran’s prostate cancer was associated with service for reasons other than radiation exposure. With regard to the final element, nexus, as noted, the Director of the Post 9-11 Era Environmental Health Program determined that the Veteran’s prostate cancer was not related to the radiation exposure that he experienced during service. Based on this, the Director of Compensation determined that there was no reasonable possibility that the Veteran’s prostate cancer resulted from exposure to radiation in service. In May 2017, Dr. C.B., a neuro-radiologist, opined that the Veteran’s prostate cancer was attributable to his in-service exposure to radiation as ionizing radiation is a known carcinogenic. Notably, he found that the time between the Veteran’s radiation exposure and his development of prostate cancer to be consistent with known medical principles. However, the Board emphasizes that Dr. C.B. fails to discuss these “known medical principles.” Furthermore, Dr. C.B. cited an abstract discussing increased prostate cancer rates for individuals in close proximity to the hypocenter of the Nagasaki atomic bomb in support of his conclusion, but failed to address the Veteran’s actual exposure findings. Further, Dr. C.B. incorrectly notes that there is no conflicting medical opinion of record and described the Veteran’s illness as permanent in nature, impacting his ability to work, although the Veteran passed away in 2006. The Director of Compensation and Director, Post-911 Environmental Health Program, a medical doctor, offered a cogent rationale in support of their conclusions while citing calculations based on the Veteran’s actual exposure to radiation and the onset of the Veteran’s disease process. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the Board affords more probative value to the fully informed March and April 2012 VA opinions than Dr. C.B.’s opinion, which was not tailored to the Veteran’s specific medical history. To the extent the appellant attributes the Veteran’s prostate cancer to radiation exposure in service, she does not have the requisite expertise to address a complex medical question such as the etiology of prostate cancer. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, for reasons outlined above, the preponderance of the evidence is against the conclusion that the Veteran’s listed causes of death, metastatic prostate cancer and pulmonary embolism, were incurred in or aggravated during military service, including on any presumptive basis. Additionally, there is no basis to conclude that service-connected hemorrhoids caused or contributed to the Veteran’s death. Accordingly, the benefit-of-the-doubt doctrine is not applicable, and the appeal is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Forde, Counsel