Citation Nr: 20021562 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 13-12 044 DATE: March 26, 2020 ORDER Entitlement to service connection for multiple myeloma is granted. FINDING OF FACT The Veteran’s multiple myeloma is related to a period of active duty for training (ACDUTRA). CONCLUSION OF LAW The criteria for service connection for multiple myeloma have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the Navy from September 1989 to September 1993. He was subsequently a member of the Navy Reserve with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from 1995 to 2005. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2013 statement, the Veteran revoked representation by the Disabled American Veterans. See 38 C.F.R. § 14.631(f)(1). He is currently unrepresented. In February 2014, the Board denied entitlement to service connection for multiple myeloma. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In January 2015, the Court granted a Joint Motion for Remand (JMR), vacated the February 2014 Board decision, and remanded the matter to the Board for action consistent with the terms of the JMR. In July 2015 and January 2018, the Board remanded the matter for further evidentiary development. Service Connection Generally, a “veteran” for VA benefits purposes is “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). “Active military, naval, or air service” is defined by VA law and regulations. Active military, naval, or air service includes active duty and any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training INACDUTRA during which the individual concerned was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA, from injury incurred or aggravated while performing INACDUTRA, or from myocardial infarction or cardiac arrest while performing INACDUTRA. Id. In this case, the Veteran has achieved “veteran” status by virtue of his DD Form 214 that confirms he had active duty service. Thus, his qualifying as a “veteran,” with active military, naval, or air service for disability benefits for a disability resulting from injury or disease incurred during service from September 1989 to September 1993 is not in question. For service connection to be granted for any disability resulting from injury or disease incurred during the remainder of his service, specifically from May 15, 1999 to June 15, 1999; March 18, 2000 to April 3, 2000; September 18, 2000 to September 24, 2000; December 9, 2000 to December 16, 2000; and February 20, 2003 to March 9, 2003, it must be shown that the claimed disability first manifested during this verified period of ACDUTRA. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, for Veterans who participated in a “radiation risk activity,” including onsite participation in a test involving the atmospheric detonation of a nuclear device, there are certain diseases which are presumptively service-connected under 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 (d). The enumerated diseases are leukemia (other than chronic lymphocytic leukemia); cancer of the thyroid, breast, pharynx, esophagus, stomach, small intestine, pancreas, bile ducts, gall bladder, salivary gland, urinary tract (including the kidneys, renal pelvis, ureters, urinary bladder, and urethra), bone, brain, colon, lung, or ovary; multiple myeloma; lymphomas (except Hodgkin’s disease); primary liver cancer (except if cirrhosis or hepatitis B is indicated); and bronchioloalveolar carcinoma. Second, service connection can be established with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a “radiogenic disease.” The term “radiogenic disease” means a disease that may be induced by ionizing radiation and shall include the following: all forms of leukemia except chronic lymphatic (lymphocytic) leukemia; any cancer; posterior subcapsular cataracts; non-malignant thyroid nodular disease; parathyroid adenoma; tumors of the brain and central nervous system; and lymphomas other than Hodgkin’s disease. Under section 3.311, in all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. § 3.307 or 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. In pertinent part, section 3.311(b)(1) provides that upon initial review of a claim, when it is determined that (i) a Veteran was exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (ii) such Veteran subsequently developed a radiogenic disease, including prostate cancer; and (iii) such disease first became manifest within the applicable specified period, before its adjudication, the claim will be referred to the Under Secretary for Benefits for consideration as to whether sound scientific and medical evidence, including an advisory medical opinion from the Under Secretary for Health if necessary, indicates that the claimed disease resulted from exposure to radiation in service. Finally, with respect to the third means of establishing service connection for a condition claimed to be due to exposure to ionizing radiation, 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 provisions concerning radiation exposure. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (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). 1. Multiple Myeloma The Veteran contends that his multiple myeloma is due to radiation exposure while serving in the Naval Reserves. For the following reasons, the Board concludes that service connection for multiple myeloma is warranted. In this case, the Veteran has met the current disability requirement. Specifically, a January 2019 VA clinical record shows a diagnosis of multiple myeloma in remission. Thus, the first element for service connection has been met. In a February 2012 statement, the Veteran reported that he was an aviation electronics technician in the Navy, and while assigned to VAW-78, one of his duties was to repair radioactive waive guides on the E2C aircraft. The Veteran noted that he was tasked with that duty on several occasions. The Veteran’s personnel records indicate he was an aviation electronic technician in the Navy Reserves. He performed activities associated with VAW-78, Carrier Airborne Early during his periods of ACDUTRA. In a June 2017 statement, the Veteran reported that VAW-78 had been decommissioned. In January 2012, VA requested the Naval Dosimetry Center to furnish DD-1141, Record of Exposure to Ionizing Radiation, or an equivalent record of occupational radiation exposure for the Veteran’s period of active service from September 1989 to September 1993, rather than his period of Navy Reserves service from 1995 to 2005. In February 2012, the Naval Dosimetry Center furnished document, stating that review of the exposure registry revealed no reports of occupational exposure to ionizing radiation for the Veteran. The document further stated that the official exposure record would be maintained in the Veteran’s medical record. However, review of the Veteran STRs and personnel records, to include those dated during his period of service in the Naval Reserves did not reveal the existence of DD 1141, or an equivalent record regarding radiation exposure. In September 2019, VA submitted a request to National Personnel Records Center (NPRC) to furnish DD-1141, Record of Exposure to Ionizing Radiation, or an equivalent record of occupational radiation exposure for the Veteran’s period of active service from September 1989 to September 1993. In October 2019, NPRC responded that it had no records for this individual and suggested VA utilize the Defense Personnel Records Image Retrieval System (DPRIS) to obtain relevant information. In November 2019, VA requested the Naval Dosimetry Center to furnish DD-1141, Record of Exposure to Ionizing Radiation, or an equivalent record of occupational radiation exposure for the Veteran’s period of active duty service, with active duty and inactive duty service in the Navy Reserves and National Guard. In December 2019, the Naval Dosimetry Center furnished document, stating that review of the exposure registry revealed no reports of occupational exposure to ionizing radiation for the Veteran. The document further stated that the registry does not maintain records for non-ionizing forms of radiation, such as radar or microwave. In this case, the Naval Dosimeter Center indicates that review of the exposure registry revealed no reports of occupational exposure to ionizing radiation for the Veteran. However, the Naval Dosimeter Center further indicated that the registry does not maintain records for non-ionizing forms of radiation, such as radar or microwave. When this fact is combined with the Veteran’s competent and credible lay statements of exposure to radiation while repairing radioactive waive guides on the E2C, as an aviation electronics technician in the Navy Reserves and the other facts noted above, including the places, types, and circumstances of service, the evidence is at least evenly balanced as to whether the Veteran was exposed to some form of radiation during a period of ACDUTRA. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). Thus, the Board finds that the second element of service connection has been met. In August 2011 and June 2017 letters, private Dr. C.G. reported that the Veteran’s cancer history dates back to November 2005 when he was diagnosed with plasmacytoma. He received radiation therapy, but unfortunately the disease progressed to his bone marrow in January 2007 and he was then diagnosed with multiple myeloma. Dr. C.G. explained that myeloma is generally a disease of older individuals with the median age of 73. The Veteran was diagnosed at 35 years old, which is exceedingly young for this type of cancer. He was in the Navy Reserve from 1995 to 2005 and was exposed to ionizing radiation during his work with radioactive wave guides. Dr. C.G. opined that multiple myeloma has been linked to radiation exposure and it is a reasonable connection for a young otherwise healthy young man to get cancer from this exposure. In this case, the Naval Dosimetry Center reported that the exposure registry revealed no reports of occupational exposure to ionizing radiation for the Veteran, however, the registry does not maintain records for non-ionizing forms of radiation, such as radar or microwave. Dr. C.G. provides an opinion that is somewhat ambiguous as to the type of radiation the Veteran was exposed to during service, thus indicating that his opinion would reflect the multiple myeloma is due to the type of radiation to which the Veteran was exposed even if it were not ionizing radiation. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Moreover, as Dr. C.G. explained the reasons for her conclusions based on an accurate characterization of the evidence of record and general medical principles, her opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical opinion in the evidence of record. (Continued on the next page)   In light of the current diagnosis of multiple myeloma, competent and credible lay evidence of in-service exposure to radiation although not necessarily ionizing radiation, the private opinion, and resolving reasonable doubt in the Veteran’s favor, service connection multiple myeloma is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.