Citation Nr: 18123723 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 07-20 211 DATE: August 2, 2018 ORDER Entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation and/or herbicide agents, is denied. FINDING OF FACT Prostate cancer did not have onset during active service, did not manifest to a compensable degree within one year of active service, and is not otherwise etiologically related to active service, to include as due to exposure to ionizing radiation and/or herbicide agents. CONCLUSION OF LAW The criteria for service connection for prostate cancer, to include as due to exposure to ionizing radiation and/or herbicide agents, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1964 to November 1967. This matter was previously remanded by the Board in September 2010 and April 2016 for further development. As the requested development has been completed, the matter is properly returned to the Board for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran was previously represented by Veterans of Foreign Wars of the United States (VFW) pursuant to a July 1973 VA Form 23-22, Appointment of Service Organization as Claimant’s Representative. However, in February 2018, the Veteran clarified that he wished to represent himself in his appeal. As such, the Board considers the previous representation by VFW to be revoked, and the Veteran is now recognized as proceeding pro se in this appeal. Additionally, within his February 2018 correspondence, the Veteran requested an additional 30 days to review documents provided by VA and to obtain and submit additional evidence and/or argument in support of his appeal. Thereafter, the Board granted a 90-day extension in April 2018; however, to date, the Board has not received any additional argument or evidence from the Veteran. As such, the Board will proceed to adjudicate the appeal. See Wood v. Derwinski, 1 Vet. App. 190 (1991). 1. Entitlement to service connection for prostate cancer as a result of exposure to ionizing radiation. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). For certain chronic disorders, including malignant tumors, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Additionally, for chronic diseases defined by 38 C.F.R. § 3.309(a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Even where service connection cannot be presumed, service connection may still be established on a direct basis. See Stefl, 21 Vet. App. at 124-25; see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Additionally, service connection for conditions claimed to be due to exposure to ionizing radiation in service (as is the case here) 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. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311 (2017) 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, 34 F.3d 1039. The Veteran does not qualify as a “radiation-exposed veteran” under 38 C.F.R. § 3.309(d)(3) and prostate cancer is not one of the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), however, prostate cancer qualifies as a “radiogenic disease” and as such, the Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311. Under the special development procedures in 38 C.F.R. § 3.311(a)(2), 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. 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 treatment 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 VA 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). Service treatment records do not document any complaints, treatment, or diagnosis of prostate cancer. Notably, an October 1967 separation exam documents a normal clinical evaluation without any noted defects or diagnoses; additionally, the Veteran denied any related conditions within a concurrent report of medical history. Service personnel records contain a March 1967 Nuclear Duty Position Screening Evaluation which documents that the Veteran was granted an assignment to nuclear weapons duties. Similarly, service treatment records contain a March 1967 Nuclear Duty Position Medical Notification Form which was to be retained as part of the Veteran’s medical record. However, the Veteran’s service treatment or personnel records do not show that he was trained in the handling of radiation emitting devices or that he was otherwise exposed to radiation. For example, a December 2004 response from the National Personnel Records Center (NPRC) via the Personnel Information Exchange System (PIES) indicates that a Record of Occupational Exposure to Ionizing Radiation (DD Form 1141) is not a matter of record. Post-service VA treatment records first document a diagnosis of prostate cancer in September 2001, approximately 37 years after the Veteran’s claimed initial exposure to ionizing radiation during active service. However, there is no probative medical evidence of a nexus between the Veteran’s prostate cancer and his active service, to include as due to exposure to ionizing radiation and/or herbicide agents. The Veteran reported within a December 2011 statement that he received training regarding Atomic Demolition Munitions (ADM) and that his in-service duties involved training others on the assembly, transport, inspection, handling, and firing of nuclear weapons. He also reported direct involvement with handling and inspection of nuclear weapons storage sites, as well as the use of spray chemicals to control vegetation around nuclear weapon storage sites. The Board found in its September 2010 remand that the evidence discussed above was sufficient indication that the Veteran may have worked in an area where a radiation emitting device was stored, and as such, he was entitled to the special development procedures of 38 C.F.R. § 3.311. Thereafter, VA requested that the VA Under Secretary of Health review the Veteran’s records and prepare a radiation dose estimate, to the extent feasible, based on available methodologies. Thereafter, in November 2017, the Director of the VA Post 9/11 Era Environmental Health Program responded that there was no record of radiation exposure to the Veteran during active service; moreover, the Veteran was not monitored for exposure to ionizing radiation. He assigned an estimated total effective dose equivalent of 2.0 rem based upon an estimated dose of 0.5 rem per year over the Veteran’s four years of active service. The Director cited a May 2016 position statement by the Health Physics Society which found that below levels of 5-10 rem above background from all sources combined (including occupational and environmental exposures), the observed risks of health effects in people exposed to radiation are not statistically different from zero – either too small to be observed or nonexistent. Based upon this, the Director concluded that because the Veteran’s lifetime total radiation dose did not exceed 10 rem above natural background, it was unlikely that prostate cancer was caused by exposure to ionizing radiation during active service. Based upon the above, the VA Director of Compensation Service provided a subsequent November 2017 advisory opinion that there is no reasonable possibility that the Veteran’s prostate cancer resulted from his exposure to ionizing radiation during active service. The Board notes that the Veteran’s lay statements of record are probative evidence insofar as they report observable symptomatology or in-service duties, see Layno v. Brown, 6 Vet. App. 465, 469 (1994); however, to the extent that such statements assert a nexus between the Veteran’s prostate cancer and his active service, to include as due to exposure to ionizing radiation and/or herbicide exposure, they are afforded less probative value, as the Veteran is not shown to possess medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, to the extent that the Veteran has also claimed entitlement to service connection for prostate cancer as a result of exposure to herbicide agents, which he has reported were used to kill vegetation around nuclear weapons storage sites during active service, the Board is mindful that service personnel records do not document active service in the Republic of Vietnam; therefore, the Veteran cannot be presumed to have been exposed to an herbicide agent. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307, 3.309(e). His personnel records also do not show he served in a location that had known herbicide use. While the Veteran’s lay statements are probative insofar as they describe his duties during active service; they are not probative evidence of herbicide exposure, as the Veteran does not possess expertise regarding the specific chemical nature of herbicide agents versus other commercial chemicals used to control vegetation. Moreover, the additional probative evidence of record does not otherwise document that the Veteran was directly exposed to herbicide agents during active service. Given the above, service connection is not warranted as due to claimed herbicide exposure. Id. Additionally, the Board is mindful that the post-service VA treatment records first documenting prostate cancer are dated approximately 34 years after service discharge; such a lengthy time interval between service and the earliest post-service clinical documentation of the disability is of itself a factor for consideration against a finding that the disability is related to service. See Maxson v. Gober, 230 F.3d 330 (Fed. Cir. 2000). Moreover, as there is no probative evidence that malignant tumors manifesting as prostate cancer first had onset during active service or within one year of service discharge, presumptive service connection for chronic disease is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation and/or herbicide agents. As such, there is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel