Citation Nr: 1808904	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  16-40 698	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for lung cancer.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. S. Kyle, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1945 to December 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  Original jurisdiction for the Veteran's claim was returned to the RO in Detroit, Michigan, prior to certification to the Board.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  The Veteran did not participate in a radiation-risk activity during service.

2.  There is no competent evidence the Veteran was otherwise exposed to ionizing radiation in service.

3.  The Veteran's lung cancer manifest several years after separation from service and is not otherwise the result of a disease or injury in service.


CONCLUSION OF LAW

The requirements for entitlement to service connection for lung cancer have not been met.  38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.311 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans seeks entitlement to service connection for lung cancer.  He asserts his lung cancer is the result of exposure to ionizing radiation due to his service during the occupation of Japan after World War II.  The available personnel records show the Veteran served in Japan from October 1945 to October 1946 and was awarded the Army of Occupation Medal.

Service connection for conditions claimed to be due to 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.A. § 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 during 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 has 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).

Diseases presumptively service-connected for radiation-exposed veterans under the provisions of 38 U.S.C.A. § 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.A. § 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 claimant may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the claimant 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.  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).  In all other claims, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the claimant's exposure to radiation.  These records normally include but may not be limited to the claimant'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 claimant'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 provisions of 38 C.F.R. § 3.311 do not give rise to a presumption of service connection, but rather establish a procedure for handling claims brought by radiation exposed veterans or their survivors.  See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997).  Section 3.311 essentially states that, in all claims in which it is established that a radiogenic disease first became manifest after service, and it is contended that the disease resulted from radiation exposure, a dose assessment will be made; however, absent competent evidence that the claimant was exposed to radiation, VA is not required to forward the claim for consideration by the Under Secretary for Benefits.  See Wandel v. West, 11 Vet. App. 200, 204-05 (1998).

The preponderance of evidence is against a finding that the Veteran is a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3).  As previously noted, the definition of "radiation-risk activity" outlined in 38 C.F.R. § 3.309(b)(ii) includes service as part of 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.  The service as part of the occupation of Hiroshima or Japan requires official duty within ten miles of either city.  The Defense Threat Reduction Agency (DTRA) has considered the Veteran's assignment history and determined that he was never closer than 390 miles away from either city during his service in Japan.  The Veteran has conceded in several statements during the appeal period that he was never closer to either city than the DTRA estimate.  There is no evidence that suggests the Veteran was interned as a prisoner of war.  Thus, he did not participate in a "radiation-risk activity" and cannot be considered a "radiation-exposed veteran" for the purposes of presumptive service connection under 38 C.F.R. § 3.309.

The Board also finds the special development procedures outlined in 38 C.F.R. § 3.311 are unnecessary in this case as there is no competent evidence that the Veteran was exposed to ionizing radiation in service.  See Wandel, 11 Vet. App. at 204-05.

The Board acknowledges the Veteran's contention in his March 2015 notice of disagreement in which he asserted that east winds could have dispersed ionizing radiation in the upper atmosphere to the locations in which he served in Japan; however, the Board finds the Veteran is not competent to provide evidence in this regard as there is no indication he has the requisite skill or training to discuss the scientific principles necessary to establish exposure based on this theory.

In a September 2016 statement, the Veteran's representative suggested the Veteran's service in an engineer unit may have caused him to be exposed to greater levels of radiation than other service members who served during the occupation of Japan.  To support this theory, the Veteran's representative cited a book entitled Killing Our Own:  The Disaster of America's Experience with Atomic Radiation, in which the author suggests DoD radiation exposure estimates for Marines serving in engineer units during the occupation of Japan were not accurate.  The Board notes this book was published in 1982, which predates the presumptive provisions established by the Veterans' Dioxin and Radiation Exposure Compensation Standards Act of 1984.  The Board further notes the Marine engineer units discussed in the book served in the immediate area of the atomic blast hypocenter, which is consistent with the subsequently established presumption of exposure based on VA's definition of "radiation-risk activity" outlined in 38 C.F.R. § 3.309(b)(ii).  Further, the author's point regarding inaccurate DoD estimates is based upon the assertion that DoD focused its research efforts regarding radiation exposure in Hiroshima and Nagasaki too much on gamma exposure (external atmospheric exposure such as that alleged by the Veteran) and not enough on internal radiation as a result alpha particles.  In sum, the Board finds the Veteran was not similarly situated to the Marine engineers discussed in the book, who would now be considered to have engaged in a "radiation-risk activity" under VA regulation.

The Veteran has not pointed to any other source of potential radiation exposure.  The record establishes the Veteran's service records were destroyed in a 1973 fire at the National Personnel Records Center, so a remand to obtain unavailable records would only serve to delay adjudication of the Veteran's claim.  See National Archives, The 1973 Fire, National Personnel Records Center, http://www.archives.gov/st-louis/military-personnel/fire-1973.html (last visited Jan. 30, 2018).  The Board recognizes it has a heightened duty to consider the application benefit-of-the-doubt rule when service records are unavailable.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  Yet, this heightened duty does not change the legal standard for establishing a service connection claim.  See Russo v. Brown, 9 Vet. App. 46, 51 (1996).  In this case, there is no competent evidence suggesting the Veteran was exposed to ionizing radiation in service, rendering a VA examination unnecessary.  See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).

In sum, the record establishes the Veteran did not engage in a "radiation-risk activity" in service.  As such, he cannot be considered a "radiation-exposed veteran" with regard to the presumptive provisions relating to exposure to ionizing radiation.  There is no competent evidence that indicates he was otherwise exposed to ionizing radiation in service.  As his lung cancer manifest several years after his separation from service and has not otherwise been attributed to an in-service disease or injury, the Board finds service connection for lung cancer must be denied.


ORDER

Entitlement to service connection for lung cancer is denied.



____________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs