Citation Nr: 1808778 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 12-25 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for chronic myelogenous leukemia (CML), to include as secondary to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1972. This matter comes to the Board of Veteran's Appeals (Board) on appeal from an October 2010 rating decision which denied service connection for CML based on exposure to ionizing radiation. FINDING OF FACT The evidence of record demonstrates that the Veteran's CML was initially diagnosed around 1989 and treated in October 1990, almost 20 years post-service, and has not been shown by competent medical, or competent and credible lay, evidence to be etiologically related to his active service, to include as due to exposure to ionizing radiation. CONCLUSION OF LAW The criteria for service connection for CML have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to notify and assist The RO sent the Veteran a notice letters addressing this appealed issue in November 2009, April 2010 and prior to the rating on appeal. Later in September 2010 the Veteran was advised that all evidence had been forwarded to the Undersecretary for Health for an opinion in accordance with 38 C.F.R. § 3.311. Regarding the duty to assist, all available service treatment records and service personnel records are in the claims file, including an inservice Report of Occupational Exposure to Ionizing Radiation. Additionally an etiology opinion was obtained in October 2010 from the Director of Radiation and Physical Exposure, who is noted to be a physician. Further review regarding radiation exposure was made by the Director of Compensation and Pension later in October 2010. As for post-service medical evidence, sufficient evidence has been obtained from the private records submitted by the Veteran to establish existence of a current disability of CML. The Board acknowledges that the most communications from the representative in the January 2018 brief requested that a VA examination be obtained for the purpose of examining the Veteran while his CML is in an active state to ascertain his current condition and continuity of symptoms. However as the question of his CML as a current disability is not in dispute, thus there is no need for an examination to address the existence or continuity of symptoms or current condition. As such, the Board will proceed to the merits. Factual Background and Analysis of Service Connection Claim The Veteran claims entitlement to service connection for CML on the bases of inservice exposure to ionizing radiation. Service connection may be granted 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(a). Service connection generally requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including malignant tumors, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. When a disability is claimed as attributable to radiation exposure during service, service connection can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). First, service connection for certain conditions may be presumed for veterans who engaged in a radiation risk activity pursuant to 38 U.S.C. § 1112(c)(3) and 38 C.F.R. § 3.309(d)(3). Second, 38 C.F.R. § 3.311(b)(2) lists other radiogenic diseases that may also be service connected if the VA Undersecretary for Benefits determines that they are related to ionizing radiation exposure during service. Third, service connection can be established directly; this generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Combee v. Brown, 34 F.3d 1039, 1043 (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. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309 (b)(i), (ii) (2017). 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. 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 if 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: (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) (2017). 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). The Veteran specifically alleges that his CML is due to exposures to a significant amount of ionizing radiation as a direct result of his duties in service. On his Radiation Risk Activity Information Sheet received September 30, 2009; he claimed to have been exposed to a high level of radiation due to being on fire watch aboard the USS James Monroe while it was docked in the Charleston Naval Yard in 1968. He claimed the ship was under construction by welders. He indicated that he had been seen by a Navy Corpsman at the time who noted that his radiation badge showed such a high number that he asked the Veteran if he was playing a joke on him. The Veteran denied any exposure in his duties as an electronic specialist. He repeated this same history in a June 2010 statement in support of claim, but gave a different name of the ship he was aboard, the U.S.S. Lafayette, and indicated it took place on July 30, but did not provide the year. Later in his NOD received in May 2011 he provided another version of events, indicating that he was either exposed to radiation during firewatch in the reactor on either the U.S.S. James Monroe or the U.S.S. Lafayette, and indicated that his travel orders in service records showed that he reported to the U.S.S. James Monroe on May 21, 1968 which was in the Charleston Shipyard for overhaul and was transferred 2 months later to the U.S.S. Lafayette, reporting on July 30, 1968 which was in the Portsmouth shipyard for overhaul. He again reiterated that exposure took place while he was on firewatch in the reactor room and he wore a badge showing high exposure at the time. He also pointed out that he was a non-smoker. Later in his August 2012 VA Form I-9 he stated that the exposure on firewatch took place on the U.S.S. James Monroe and indicated that he sustained a radiation level much higher than the confirmed level of 0.036 rem sustained on submarine duty. The evidence does not show, and the Veteran does not explicitly assert, that the Veteran incurred CML while in service or within a year of his discharge. A review of the Veteran's service treatment records show no complaints, diagnoses, or treatment relating to any form of cancer. On the October 1972 discharge examination as well as the corresponding Report of Medical History, no indication of any CML symptoms was shown and he denied having tumor, cyst or cancer. As for radiation exposure, although none of the service department records clearly confirm the Veteran's account of receiving an unsafe radiation dose as he described, the STRs do contain a Record of Occupational Exposure to Ionizing Radiation which confirms that during service aboard the submarine U.S.S. Lafayette (SSBN 616) from June 39, 1968 to September 30, 1968, he received exposure to Gamma and X-ray radiation with a dosage amount of 0.036. This amount was also his total lifetime amount which remained unchanged during the rest of his service aboard this ship through April 1969. No other incidents of exposure were recorded and this isolated incident of exposure was reported on board with no previous record of exposure to ionizing radiation. The October 1972 separation examination also acknowledged radiation exposure as it was titled "Release and Termination Radiation." Likewise a June 1968 examination was for the purpose of "Radiation Pre-Placement" noting the potential for radiation exposure. See STRs, pgs. 4, 7, 11, 15-17. Service personnel records indicate that the Veteran served aboard the U.S.S. Lafayette (SSBN 616) from October 6, 1968 until October 6, 1969 with service on the U.S.S. Lloyd Thomas (DD 764) from October 6, 1969 to October 1, 1970 and with service aboard the U.S.S. Orion (AS 18) from October 1, 1970 to November 3, 1972. The records also include that prior to this the Veteran was stationed in Dam Neck, Virginia from August 11, 1967 to May 3, 1968 when he was stationed in NAVSUBASE in NLON Connecticut. As to whether he was ever aboard the U.S.S. James Monroe, transfer orders show he was transferred to the U.S.S. James Monroe (SSBN 622) for sea duty on May 3, 1968, but reported for duty to the U.S.S. Lafayette on July 30, 1968. On June 18, 1969 he was declared permanently environmentally unadaptable for submarine duty, although no reason was given. See SPRs pg. 10-11, 22. The earliest post-service medical records dated from October 1990, and show that the Veteran underwent treatment for chronic CLL with bone marrow transplantation. The records indicated that he was diagnosed with this disease in January 1990 after findings of a white count of 33,000 with splenomegaly and bone marrow findings consistent with CML in chronic phase, Philadelphia chromosome positive. See 36 pg. private medical records received 5/17/10 at pg. 9. Subsequent records confirm ongoing follow-up for chronic CML including from 1991 through 2009. Among these records a November 1991 follow-up suggested that the CML was diagnosed in late 1989. In March 1999 he was followed up for CML status post-transplant, with normal counts noted. The records primarily addressed other medical complaints including some complications from the transplant such as chronic graft versus host disease with eye and oral symptoms (including as noted in January 2003). However he was noted to be without evidence of active CML in records through 2006, with a December 2006 record describing him in complete remission. In a June 2007 oncology report 17 years post-transplant, which discussed the course of his illness in detail, he was assessed with CML in chronic phase at the time of transplant now 17 years post-transplant. He continued to be recommended treatment including with a continued prednisone taper and ongoing disease monitoring as well as treating other multiple medical issues. In December 2007 he was described as being in complete molecular remission but some new tests showed some positive findings. In February 2008 he was described as having a reemergence of detectable disease in blood and bone marrow with no evidence of CML on bone marrow pathology and blood counts within normal limits. Subsequent records from December 2008 described a history of molecular relapse of the disease a year ago. In September 2009 he was seen for oncology follow-up for CML with history of transplant in October 1990 and having started on Gleevec in March 2009. See 77 pg private records received 5/17/10 at pg. 6-10, 15-16, 70; see also 76 pg. private records received 12/21/2009 at pg. 8, 14, 19, 22, 23, 36, 39, 53, 54. Hence, the competent medical evidence establishes the presence of a current disability of CLL and the first element of service connection is established. However, none of the records address the Veteran's claimed theory of causation. In July 2010 the Naval Dosimetry Center confirmed that the Veteran's total exposure was 00.036 REMs of DDE-Photon radiation during his period of exposure from September 30, 1968 to June 13, 1969. The type of radiation of DDE-Photon was Deep Dose Equivalent to the whole body as defined in 10 CFR 20. In September 2010 the Director of Compensation and Pension sent a request for review of radiation claim to the Undersecretary for Health. Pursuant to this request, an October 2010 memorandum opinion was obtained from the Director, Radiation and Physical Exposures, who is a physician, for review of the Veteran's radiation exposure in regards to whether it was a causative factor in the Veteran's development of CML. The Director noted that the Veteran's occupational exposure to ionizing radiation was documented on DD Form 1141, Record of Occupational Exposure to Ionizing Radiation, which indicated that the accumulated total lifetime dose is 0.036 rem gamma and x-ray during the time in service (1966 to 1972). The Director also noted that the Veteran was diagnosed with chronic myelogenous leukemia in 1989 that radiation exposure during military service is the cause of said cancer. The Director, Radiation and Physical Exposures pointed to the position statement of Health Physics Society (PSO 10-1), Radiation Risk in Perspective, revised in August of 2004, which states that "in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against quantitative estimation of health risks below an individual dose of 5 rem in one year or a lifetime dose of 10 rem above that received from natural sources." The position statement was noted to further state that "there is substantial and convincing scientific evidence for health risks following high-dose exposures. However, below 5---1 0 rem (which includes occupational and environmental exposures), risks of health effects are either too small to be observed or are nonexistent." The Director concluded that "since the Veteran's occupational radiation dose did not exceed 5 rem in one year or 10 rem in a lifetime, it is our opinion that it is unlikely that the Veteran's chronic myelogenous leukemia can be attributed to radiation exposure while in military service." Later in October 2010 an opinion was obtained from the Director of Compensation and Pension Service (C&P Director) following review of the claims file to include the consideration of the dosimetry estimate and October 2010 memorandum opinion from the Director, Radiation and Physical Exposures. The C&P Director agreed with the findings and opinion from the October 2010 memorandum opinion. The C&P Director also noted that the Veteran was 20 year old when exposed to ionizing radiation and that the CML was diagnosed 21 years after occupational exposure to ionizing radiation. The C&P Director also took note of the Veteran's October 1972 separation examination which showed findings of the Veteran being male, Caucasian, 74 inches in height, weighing 200 lbs; his post-service history of employment, including as electronic technician for McDonald Douglas and engineer for Boeing; his non-smoking history and his family history which was positive for father with intestinal malignancy and sister with breast cancer. The C&P director concluded that as a result of the October 2010 opinion and following review of the evidence in its entirety, there is no reasonable possibility that the veteran's CML is the result of occupational exposure to ionizing radiation during military service. Given the history of the CML having been manifested nearly two decades post service, it is clear that neither the provisions of 38 C.F.R. §§ 3.303(a), pertaining to direct service connection, nor those of 3.303(b), pertaining service connection for chronic conditions shown to have begun in service and continued thereafter, are applicable, as the CML cancer did not manifest until either late 1989 or 1990. Furthermore, 38 C.F.R. § 3.307, which allows for presumptive service connection for chronic conditions that manifest to a compensable degree within one year of service, is also not applicable, as the Veteran's CML developed long after the one year presumptive period. Accordingly, the Board will restrict its focus to consideration of those regulations allowing for service connection for disabilities that manifest after service, namely, 38 C.F.R. §§ 3.303(d) and 3.309(d). The Veteran does not qualify as a "radiation-exposed veteran" as defined by 38 C.F.R. § 3.309(d), as he did not participate in a "radiation-risk activity." 38 C.F.R. § 3.309(d)(3)(i), (ii) (2017). Accordingly, he cannot take advantage of the presumptive provisions of 38 C.F.R. § 3.309(d). However leukemia (other than chronic lymphocytic leukemia) is generally is one of the disease subject to the presumption under 3.309(d)(2); thus his diagnosed CML is specifically included as one of the radiogenic diseases subject to special development procedures for "radiogenic diseases" under 38 C.F.R. § 3.311. The Board notes that these special development procedures were followed in the course of this appeal including the aforementioned radiation dose estimate, forwarding this matter to the Undersecretary for Health and obtaining a medical opinion from the Director, Radiation and Physical Exposures and the opinion from the C&P Director as discussed above. The October 2010 unfavorable medical opinion from the Director, Radiation and Physical Exposures (which was also relied upon by the unfavorable determination by the C&P director), was based on review of the evidence, to include the DD Form 1141, and contained adequate rationale supported by citation to medical literature. Additionally, the radiation review memo from the Director of Compensation Service, consider factors specific to the Veteran, to include his age, gender, race, family history, and medical history - such as being a non-smoker. The Board finds that physician's opinion and the Director's review memorandum were based on the relevant facts with a supported rationale. In light of this the Board places much weight on these pieces of evidence. No competent medical evidence has been submitted to refute this unfavorable opinion. 38 U.S.C. § 5107(a). Although he has alleged that his CML is the result of his inservice radiation exposure, the Veteran is not competent to establish such a nexus as this requires testing and medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, the Veteran's opinion as to the etiology of a complex disease, such as CML, is not competent evidence and lacks weigh. Additionally, the 2018 Brief cites to WebMD, stating: "Most people will never know what caused them to get CML. You don't typically get it from your parents or from infections. Your smoking habits and diet don't seem to raise your chance of getting it either. The only known risk is if you've been in contact with high levels of radiation." The Board places little to no weight on this medical literature because it is not specific to the facts of this case, i.e., it does not note that the Veteran's dose exposure of 00.036 rem. Additionally, it is not accompanied by an interpretation by a competent medical professional. For example, in contrast, the medical literature cited in the 2010 radiation review memorandum was interpreted and applied by the Director, Radiation and Physical Exposures, with consideration of the Veteran's accumulated total lifetime dose. In summation, the Board finds that the preponderance of the evidence is against a determination that the Veteran's CML is attributable to service, to include as due to confirmed exposure to ionizing radiation while in service. Thus, the Board finds that service connection for CML under 38 C.F.R. §§ 3.303(d), and 3.311 is denied, and, as the preponderance of the evidence is against the claim of service connection, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). ORDER Service connection for CML, to include as a result of exposure to ionizing radiation is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs