Citation Nr: 1820183 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 14-29 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for plasmacytoma, (claimed as bone cancer and right leg condition) due to exposure to ionizing radiation. REPRESENTATION Veteran represented by: Claire J. White Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. McDuffie, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1972 to July 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The RO in Oakland, California has current jurisdiction. In July 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ); a transcript of this hearing is of record. It should be noted that at the July 2017 hearing the Veteran was represented by the California Department of Veterans Affairs. In September 2017, the Veteran submitted an updated Power of Attorney and listed Claire J. White, Esq., as the representative. In preparing to decide the issue on appeal, the Board has reviewed the contents of the Veteran's electronic files, including the Content Legacy Manager and Veterans Benefit Management System (VBMS) claims files, using Caseflow Reader. All records are now in these electronic systems. FINDINGS OF FACT 1. The Veteran was exposed to ionizing radiation in-service. 2. The evidence is at least in equipoise that the Veteran's plasmacytoma is attributable to the Veteran's military service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for plasmacytoma have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.311 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2017). As the Board is granting the claim in full, any error committed by VA with respect to the duties to notify or to assist would be harmless error and need not be considered. II. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303 (d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 CFR 3.303(b). With respect to the current appeal the list of current diseases does not include plasmacytoma. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. The Board will next turn to the Veteran's contention that his plasmacytoma cancer is due to ionizing radiation. First, there are specific diseases which may be presumptively service-connected if manifest in a radiation-exposed veteran. A "radiation-exposed veteran" is defined 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 (d)(3). A "radiation-risk activity" is defined as onsite participation in a test involving the atmospheric detonation of a nuclear device, the occupation of Hiroshima or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946, 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, or the Veteran's presence at certain specified additional locations. Id. The second avenue of recovery is found under 38 C.F.R. § 3.311 (b)(2). This provision provides that certain listed "radiogenic" diseases found 5 years or more after service in an ionizing-radiation-exposed veteran may be service connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest in the period specified, the claim will be referred to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311 (c). When such a claim is forwarded for review, the VA Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311 (e) and may request an advisory medical opinion from the VA Under Secretary of Health. 38 C.F.R. § 3.311 (b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311 (c)(1). Pursuant to 38 C.F.R. § 3.311 (b)(2), radiogenic diseases include "bone cancer and multiple myeloma." A disease is also considered a radiogenic disease where competent scientific or medical evidence that the claimed condition is a radiogenic disease is received. See 38 C.F.R. § 3.311 (b)(4). Finally, there is a third avenue of recovery in a case involving radiation as the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 4, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran contends that service connection is warranted for plasmacytoma to include as due to his exposure to ionizing radiation in-service. The Veteran's plasmacytoma was diagnosed during the prescribed period; 5 years or more after exposure. The Board notes that, as discussed above it has been found that the Veteran was exposed to ionizing radiation in-service and thus the Veteran was referred for a dosage estimate. The case was referred to the Department of the Navy, Naval Dosimetry Center for a determination as to whether the Veteran was exposed to ionizing radiation. A March 2013 memorandum indicated the Veteran was exposed to radiation from January 2, 1974 to June 23, 1978. The memorandum noted the Veteran was exposed to 00.000 rem dosage of radiation throughout his entire body (SDE WB) and a deep dose equivalent (DDE-Photon) of 00.335 rem and 00.000 rem of DDE-Neutron. Then, the claim was referred to the Under Secretary of Health and the Director of Compensation Services for further consideration in accordance with 38 C.F.R. § 3.311 (c). August 2013 opinions from both the Director of Compensation Services and Under Secretary of Health have been associated with the claims file. The opinions noted that the Veteran's occupational exposure to ionizing radiation does not meet or exceed the annual dose estimate of 5 rem, or 10 rem in a lifetime. Both opinions noted the Veteran's accumulated lifetime dose was 0.335 rem. It was noted that the Health Physics Society in their position statement PS010-2, Radiation Risk in Perspective states that in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against a quantitative estimate 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. As below 5-10 rem, including occupational and environmental exposures, risks of health effects are either too small to be observed or are nonexistent. It was noted that there is no reasonable possibility that the Veteran's multiple myeloma was the result of exposure to ionizing radiation during service. As such, service connection based on the procedural advantages of 38 C.F.R. § 3.311 is not warranted. See VA Memo received August 26, 2013. A July 2014 VA medical opinion was obtained and the examiner concluded that it is less likely as not that the Veteran's plasmacytoma was due to his radiation exposure in service. The examiner reiterated the same reasons and bases as the Director of Compensation Services and Under Secretary of Health. See VA examination received August 1, 2014. Also of record are two opinions rendered by the Veteran's primary physicians who performed his right knee surgery and radiation treatments in 1983 and 1993. Dr. R. S. the Veteran's treating orthopedist, opined that given the Veteran's job working with radiation and nuclear reactors in service for four and a half years, it was his opinion that this occupation and the exposure to radiation more likely than not contributed to the Veteran's bone cancer (plasmacytoma) at such a young age. Dr. L. F., the Veteran's oncologist also opined that based on the Veteran's job working with radiation and nuclear reactors for four and a half years that it was more likely than not that his occupation and exposure to radiation at such a young age, contributed to his bone cancer (plasmacytoma). See Third Party Correspondence received September 7, 2013. The Board assigns more probative weight to the medical opinions of Dr. R. S. and Dr. L. F. The Board finds these opinions are from the Veteran's healthcare providers who have examined him extensively throughout the years and have intimate knowledge of the Veteran's condition and both posses the requisite knowledge, skill and training to render their opinions which are supported by the evidence and in light of the Veteran's entire medical history. The Board does acknowledge that the opinions of the Director of Compensation Services, the Under Secretary of Health and the July 2014 examiner are based on medical literature however, the Board assigns less probative value to these opinions as they were not based on the entire medical history to include the statements of the Veteran which he is competent to report. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for plasmacytoma is warranted. 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for plasmacytoma, (claimed as bone cancer and right leg condition) is granted, subject to the regulations governing monetary benefits. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs