Citation Nr: 1817264 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 13-10 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Rachel Mamis, Associate Counsel INTRODUCTION The Veteran had active military service from February 1947 to July 1948 and from November 1948 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a May 2013 decision, the Board denied the claim for service connection for prostate cancer, to include as due to radiation exposure. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). By Memorandum Decision dated November 26, 2014, the Court vacated the Board's denial of the claim and remanded it to the Board for action consistent with the Memorandum Decision. The Board remanded this case in December 2015 for additional development. The case has now been returned to the Board for further appellate action. 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. Competent evidence confirms the Veteran's participation in Operation GREENHOUSE in the Pacific Proving Ground in 1951, where he was exposed to radiation. 2. Prostate cancer was not shown in service or for many years thereafter, and the most probative evidence fails to link the Veteran's prostate cancer to service. CONCLUSION OF LAW The requirements for establishing service connection for prostate cancer have not been met. 38 U.S.C. §1101, 1110, 1131, 1137, 5107 (2012); 3.303, 3.307, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran alleges that his prostate cancer is the result of exposure to ionizing radiation. His service personnel records document that he served at the Eniwetok Atoll in the Marshall Islands from February 13, 1951 to June 5, 1951, and a November 16, 2012 letter from the Defense Threat Reduction Agency and United States Strategic Command and Center for Combating Weapons of Mass Destruction (DTRA) confirmed his participation in Operation GREENHOUSE in the Pacific Proving Ground in 1951. Service connection for disorders claimed to be due to exposure to ionizing radiation in service can be established in several 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. 38 U.S.C.A. § 1112 (2012); 38 C.F.R. § 3.309(d) (2017). Second, service connection can be established under the general principles of service connection with the assistance of special procedural advantages if the condition at issue is a radiogenic disease. 38 U.S.C.A. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.311 (2017). Service connection can also be established under the general principles of service connection by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions or special development procedures. Id.; see Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Finally, if a cancer becomes manifest to a degree of 10 percent within one year from date of termination of active duty service, such disease shall be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). Pertinent VA regulation defines a "radiation-exposed veteran" as a veteran who participated in a radiation-risk activity while serving on active duty or on active duty for training or inactive duty training. 38 C.F.R. § 3.309(d)(3). As noted above, the Veteran's participation in a radiation risk activity has been confirmed. Regardless, the Board notes that prostate cancer is not listed among those diseases for which service connection shall be presumed when exposure to ionizing radiation is confirmed. See 38 U.S.C.A. § 1112(c); 38 C.F.R. §§ 3.309(d)(1), (2). Thus, service connection for prostate cancer pursuant to the regulatory presumption of 38 C.F.R. § 3.309(d) is not warranted. Prostate cancer is, however, among those identified as a "radiogenic disease," meaning a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2)(xxiii). When a veteran suffers from a radiogenic disease and was exposed to ionizing radiation in service, VA regulations provide that special procedures should be followed in the development and adjudication of the claim. 38 C.F.R. § 3.311. It is important to note that the special procedures laid out in section 3.311 do not create a presumption for service connection. The Veteran claimed in March 2010 that his exposure to ionizing radiation while serving in the Marshall Islands resulted in his prostate cancer. In his March 2013 substantive appeal, the Veteran asserted that he has no family history of cancer, that his age and the amount of time between exposure and diagnosis should not be a factor, and that he should be afforded the benefit of the doubt. As discussed above, Defense Threat Reduction Agency and United States Strategic Command and Center for Combating Weapons of Mass Destruction (DTRA) confirmed and quantified the Veteran's in-service radiation exposure from his participation in Operation GREENHOUSE in a November 2012 letter. Initially, the Board notes the Veteran's service treatment records contain no complaints, diagnosis, or treatment of prostate cancer or other prostate disability. The Veteran's reports of medical examination in service are consistently negative for abnormalities with respect to the Veteran's genitourinary system. The Board notes that the Veteran has multiple confirmed diagnoses of prostate cancer. In May 2012, the Veteran's private physician, J. Stevens, noted the Veteran had first been diagnosed with prostate cancer in August 2005. Private clinicians also documented a diagnosis of prostate cancer in July 2009. Thus, the earliest diagnosis was in 2005, at least thirty years following his most recent separation from service. Accordingly, there is no competent evidence indicating the Veteran suffered from prostate cancer during service or for many years thereafter. Thus, the Board will turn to the question of whether his prostate cancer is related to his radiation exposure during service. Development pursuant to the provisions of 38 C.F.R. § 3.311 has been conducted. In January 2013, VA obtained an opinion from a physician through the Director of the Post 9-11 Era Environmental Health Program (DEHP). The physician expressly relied on DTRA findings as to the quantity of radiation to which the Veteran was exposed in service. As explained in its November 2012 letter, [DTRA] process established conservative theoretical maximum doses utilizing actual radiation level measurements and technical calculations from atmospheric nuclear test detonations, previously established prostate doses, bounding assumptions about exposure scenarios, and radiation science fundamentals. These maximum doses are much higher than doses that were estimated in previous radiation dose assessments, thus providing maximum benefit of the doubt to the veteran and ensuring that the reported doses are not less than actual doses. The reported doses are based on worst-case parameters and assumptions, not all of which the veteran may have encountered. These parameters and assumptions are intended to adequately encompass any activities performed by the veteran. The Veteran's input including comments with his returned scenario has been carefully reviewed to ensure that no activities in his actual exposure scenario would result in a higher dose than that generated via the expedited process. Based on the foregoing radiation exposure dosage data, the DEHP physician used the factors outlined by the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's prostate cancer. The program calculated a 99th percent value for the probability of causation of 22.71% for prostate cancer. On that basis, the DEHP physician opined that it is unlikely that the Veteran's prostate cancer can be attributed to ionizing radiation exposure while in military service. In a subsequent January 2013 letter, the Director of the Compensation Service opined that as a result of the DEHP physician's opinion and following a review of the evidence in its entirety, there is no reasonable possibility that the Veteran's prostate cancer resulted from exposure to ionizing radiation during service. In the 2014 Memorandum Decision, the Court agreed that the Board erred in relying on the January 2013 opinion from the DEHP physician which failed to provide even a cursory explanation of all of the factors outlined in38 C.F.R. § 3.311(e) when denying the claim for service connection for prostate cancer. The Court explicitly referenced the January 2013 letter's failure to address two factors; namely, the one which takes the Veteran's family history into consideration and other possible causes for the Veteran's cancer (e.g. smoking history, post-service employment history, etc.). As a result, it vacated the Board's May 2013 decision and remanded for additional action consistent with the Memorandum Decision. In an addendum opinion received in August 2017 (but erroneously dated in February 2017), the DEHP physician noted the Veteran's date of birth, service dates, his participating in Operation GREENHOUSE, age when exposed to ionizing radiation, as well as the estimated external gamma dose, external neutron dose, internal committed alpha dose to the prostate and the internal committed beta plus gamma dose to the prostate. The physician also considered the Veteran's age when diagnosed with prostate cancer, the biopsy reports, the Veteran's gender, race, height, weight, hair color, eye color, build, smoking history, and family cancer/leukemia history. The physician noted that they used the IREP and explained the following: In formulating a medical opinion, we review the record in its entirety, as presented to us. The IREP is designed to take into account the dose estimate, gender, age at time of exposure, and time lapse between onset of disease and exposure. It does not take into account family history. We usually do not consider a positive family history for cancer as that would not be in the Veteran's favor. A negative family history just means that there is no immediately identifiable genetic link to disease (although the disease could still be inherited). Regarding the extent to which exposure to radiation, or to other carcinogens, outside of service may have contributed to the development of the [cancer,] if there are additional radiation doses recorded after military service, we enter those in IREP, too, as it allows for full entry of dose history in its calculation of the probability of causation. In this case, the claims file contains no record of post-service employment or other factors (such as exposure to carcinogens) that may have contributed to the formation of prostate cancer. At this writing, the [IREP] of the National Institute for Occupational Safety and Health (NIOSH) was again use to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's prostate cancer . . . For purposes of calculation, the Veteran's external radiation doses were assumed to have been received as a single acute dose in the earliest year of exposure (1951). This assumption would tend to increase the probability of causation as calculated by IREP. The program calculated a 99th percentile value for the probability of causation of 22.80% for prostate cancer. After consideration of all of the evidence mentioned, the physician concluded that it was "unlikely (there is no reasonable possibility) that the Veteran's prostate cancer was caused by exposure to ionizing radiation while in military service. In an August 2017 Advisory Opinion, the Director of Compensation noted that the Veteran is diagnosed with prostate cancer, that he smoked 11/2 to 2 packs per day for 35 years and quit in 1983, and that he had no family history of cancer or leukemia. The Director considered these factors and the opinion from the DEHP physician, and concluded that there "is no reasonable possibility that the Veteran's prostate cancer can be attributed to ionizing radiation exposure" during service. The Veteran, though his representative, has subsequently argued that the IREP should not have considered all his exposure to radiation in a single acute dose, given that he was exposed to radiation from multiple detonations. However, the DEHP physician explained why such was done and that it was more advantageous to the Veteran to do so. The representative's argument has not been supported by any competent evidence and amounts to no more than a lay assertion attempting to outweigh a medical professional's opinion. The Board affords the DEHP physician's opinion greater probative weight, as the physician is significantly more qualified to render an opinion as to the impact of the Veteran's radiation exposure than the Veteran or his representative. The Board also notes that the Veteran's representative argued that the Court has held that the VA's use of the IREP computer simulation in evaluating claims for service connection of disabilities based on exposure to ionizing radiation amounts to a substantive rule change by the VA and that use of this tool requires it to be subject to notice and comment. The case cited by the representative for that proposition actually involves school child benefits and is not relevant to this claim. Moreover, the Board notes that in the Memorandum Decision in this case, the Court "expresse[d] no opinion at this time on the usage of IREP as a general tool to help quantify the likelihood that in-service radiation exposure caused a veteran's cancer." The Board further notes that the use of IREP by a physician in rendering an opinion is consistent with a physician using any recognized treatise evidence. The IREP tables were developed at the direction of Congress in Public Law 97-414, § 7(b)(1). In enacting the statute governing VA adjudications concerning ionizing radiation exposure, Pub. L. 98-542, Congress expressly stated that it had responded to the uncertainty regarding the effects of ionizing radiation exposure "by requiring in Public Law 97-414, the development of radioepidemiological tables setting forth the probabilities of causation between various cancers and exposure to radiation." Pub. L. 98-542, § 2(4). Although Pub. L. 98-542 does not require that VA use those tables, Congress clearly recognized that those tables would be relevant to VA adjudications of claims based on ionizing radiation exposure. Thus, the DEHP physician's use of the IREP in formulating her opinion is not prohibited by the Court nor otherwise inappropriate. Upon review of the record, the Board finds that the preponderance of the competent and probative evidence is against the claim. The Veteran does not contend and the evidence does not suggest that he suffered from prostate cancer during service or for decades thereafter. Moreover, the Veteran's prostate cancer does not qualify for presumptive service connection under 38 C.F.R. § 3.309(d). Finally, there is no medical opinion of record linking the Veteran's prostate cancer to his conceded radiation exposure during Operation GREENHOUSE. In this regard, the only medical opinions of records are against the claim. Specifically, the August 2017 opinion from the DEHP considered relevant factors as well as the findings from the IREP in opining that the Veteran's prostate cancer is unlikely to be related to his radiation exposure. The examiner further explained why family history did not impact the conclusion. While the Veteran believes that his prostate cancer resulted from his conceded in-service radiation exposure, the relationship between radiation exposure and prostate cancer involves complex medical questions; thus, the Veteran is not competent to render a medical opinion on such matter. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the 2017 opinion of the DEHP physician to be significantly more probative than the Veteran's lay assertion. For the reasons set forth above, the Board finds that the preponderance of the probative evidence is against the claim. Accordingly, the claim for service connection for prostate cancer is denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for prostate cancer is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs