Citation Nr: 18117828 Decision Date: 07/11/18 Archive Date: 07/11/18 DOCKET NO. 09-41 097 DATE: July 11, 2018 ORDER Entitlement to service connection for large cell lymphoma, to include as due to in-service radiation exposure, is granted. FINDING OF FACT The probative medical evidence of record demonstrates that the Veteran developed large cell lymphoma as a result of his repeated in-service exposure to ionizing radiation. CONCLUSION OF LAW Entitlement to service connection for large cell lymphoma, as a result of in-service radiation exposure, is granted. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the United States Army, from May 1957 through November 1957. Thereafter, the Veteran served with the United States Navy, from April 1960 through March 1964. This appeal comes to the Board of Veterans’ Appeals (Board) from rating decisions, dated in November 2004 and August 2007, issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction of the appeal presently resides with the RO in Chicago, Illinois (hereinafter Agency of Original Jurisdiction (AOJ)). The Veteran testified at a Travel Board Hearing before a Veterans Law Judge in September 2010. A transcript of the hearing has been associated with the Veteran’s claims file. The Board notes that the Veterans Law Judge who conducted the September 2010 hearing is no longer employed by the Board. The law requires that the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal. 38 C.F.R. § 20.207. Therefore, the Veteran was offered a new hearing in a letter dated March 2012; however, the Veteran responded on March 13, 2012 that he did not wish to appear for another hearing and requested the Board proceed with his appeal. Thereafter, the Veteran’s appeal was certified to the Board. In a May 2012 decision, the Board granted the Veteran’s request to reopen his claim for entitlement to service connection for large cell lymphoma. Additionally, the Board remanded the Veteran’s claim for further development, to include the procurement of a medical opinion concerning the etiology of the Veteran’s large cell lymphoma. In addition to the requested development outlined by the May 2012 remand, the Board requested a specialist medical opinion from the Veterans Health Administration (VHA) in January 2018. 38 C.F.R. § 20.901(a). In response, an February 2018 VHA medical opinion was secured and associated with the claims folder for consideration. As required by VA law and regulation, the Board provided the Veteran and his representative copies of this report and afforded him time to respond with additional evidence or argument. See 38 C.F.R. § 20.903. 1. Entitlement to service connection for large cell lymphoma, to include as due to in-service radiation exposure, is granted: The Veteran seeks entitlement to service connection for large cell lymphoma, which he contends is a result of his exposure to radiation during his active duty service. Service connection for a disease based on radiation exposure may be established in one of three different ways, which have been outlined by the Court of Appeals for Veterans Claims (Court). See Hardin v. Brown, 11 Vet. App. 74, 77 (1998); see also Combee v. Brown, 24 F. 3d. 1039 (Fed. Cir. 1994); see also Ramsey v. Brown, 9 Vet. App. 40, 44 (1996), aff’d sub. nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir 1997). First, where it is contended that disease developed as a result of exposure to ionizing radiation during service, service incurrence may be presumed under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d) for veterans who participated in defined radiation risk activities and have certain diseases. Second, service connection may 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 certain conditions are met. 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, 34 F.3d 1039, at 1043-44. In the first instance, VA regulations provide that certain diseases maybe presumptively service connected if manifest in a ration-exposed veteran. See 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). A “radiation-exposed veteran” is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who, while serving on active duty, participated in a radiation-risk activity. There are a number of activities defined as “radiation-risk activity” including, but not limited to, the onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d)(3). The Veteran has not alleged, and the evidence does not demonstrate, that he participated in a radiation-risk activity. The Veteran rather contends that his exposure to ionizing radiation occurred during the performance of his in-service occupation. As noted above, the Veteran had active duty service with the United States Navy, from April 1960 through March 1964. During his service with the United State Navy, the Veteran’s military occupational specialty was a machinist mate. In statements to the Board, the Veteran has described the duties of this occupation as repairing and installing piping for steam vents and installing the piping system for the ship’s nuclear reactor. The Veteran has further reported that he was required to check the radiation levels of this reactor on a regular basis, through the use of film badges. Therefore, the Board will turn to the applicability 38 C.F.R. § 3.311, the second avenue of establishing service connection for a disease based on radiation exposure. To consider a claim under this regulation, the evidence must show the following: (1) that the veteran was exposed to ionizing radiation in service; (2) that he subsequently developed a radiogenic disease; and (3) that such disease first became manifest within a period specified by the regulation. 38 C.F.R. § 3.311(b). If any of the foregoing three requirements has not been met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311. See 38 C.F.R. § 3.311(b)(1)(iii). For the purposes of 38 C.F.R. § 3.311, the term “radiogenic disease” means a disease that may be induced by radiation, including cancers. 38 C.F.R. § 3.311(b)(2). As to the first element, the Board finds there is no doubt or uncertainty that the Veteran was exposed to ionizing ration during his active duty service. The Veteran’s service records confirm such exposure, and the Veteran’s statements are found credible. Additionally, the Board finds that the Veteran’s large cell lymphoma is an enumerated radiogenic disease. 38 C.F.R. § 3.311(b)(2)(xxii). As to the third requirement, the Board notes the Veteran was first diagnosed with large cell lymphoma in March 2004, which occurred more than five years following his separation from active duty service in March 1964 and thus triggering the special procedures under 38 C.F.R. § 3.311(b)(1). In this regard, the Board notes that the AOJ obtained an estimation of ionizing radiation the Veteran was exposed to from the Naval Dosimetry Center. See April 18, 2007 Correspondence. With this dosage estimation, the AOJ then referred the Veteran’s claim to the Director of Compensation and Pension, so that a medical opinion may be obtained concerning whether a causal relationship existed between the Veteran’s in-service exposure to ionizing radiation and his current large cell lymphoma. In a July 10, 2007 medical assessment, the Chief of Public Health and Environmental Hazards Officer opined that it was “unlikely” the Veteran’s current large cell lymphoma was a result of his in-service exposure to ionizing radiation. The opining physician explained that “the association of non-Hodgkin’s lymphomas with radiation exposure has been inconsistent” based upon a review of the current medical literature. Following the issuance of this July 2007 medical assessment, the Director of Compensation Service issued an advisory opinion. Based upon the report from the Chief of Public Health and Environmental Hazards Officer, and his own independent review of the claims file, the Director of Compensation Service determined that “there is no reasonable possibility that the Veteran’s lymphoma” was the result of his in-service radiation exposure. However, for various reasons, the Board found the above summarized medical opinions were inadequate. In order to expeditiously resolve the Veteran’s claim, the Board sought a medical opinion from a VHA oncologist in January 2018. In response to a series of questions posed by the Board, the oncologist opined that the Veteran’s current large cell lymphoma was a result of the repeated in-service exposure to ionizing radiation. See February 2018 Medical Opinion. In support of this conclusion, the oncologist cited to medical literature which found an etiological relationship between exposure to radiation and the development of non-Hodgkin’s lymphoma, such as the type of lymphoma diagnosed in the Veteran. Continuing the oncologist explained that the medical studies reported a 35-year lag time, between the initial radiation exposure and the development of lymphoma. In light of these updated medical findings, and the specific facts of the Veteran’s in-service exposure, the oncologist concluded the in-service exposure was more likely than not an etiologic factor in the Veteran’s development of lymphoma. The Board finds that the February 2018 medical opinion to be probative and entitled to significant weight. Here the medical examiner provided a clear rational for his opinion and included citations to relevant medical literature. Moreover, the Board notes that the examiner reviewed the Veteran’s claims file, including his service medical records, current medical treatment records, and past medical and administrative findings concerning the level of radiation the Veteran was exposed to. Based on these findings, the examiner concluded that the Veteran’s in-service exposure to radiation caused him to subsequently develop large cell lymphoma. Significantly, the Board notes that the examiner rendered this opinion with a greater than 50 percent certainty. In light of these facts, the Board finds that the criteria for entitlement to service connection for large cell lymphoma, to include as due to in-service exposure to radiation have been met. See 38 U.S.C. §5107; 38 C.F.R. § 3.102. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Timbers, Associate Counsel