Citation Nr: 20031282 Decision Date: 05/05/20 Archive Date: 05/05/20 DOCKET NO. 07-12 824 DATE: May 5, 2020 ORDER Entitlement to service connection for prostate cancer is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s prostate cancer began in service or is otherwise related to any in-service disease, injury, or event, including exposure to ionizing radiation. 2. The preponderance of the evidence is against a finding that the Veteran was exposed to herbicides during his active duty service. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1948 to July 1970. This case comes to the Board from a decision issued by the Agency of Original Jurisdiction (AOJ) in June 2006, which denied service-connected disability compensation for prostate cancer. The Board remanded this claim for the AOJ for further development in March 2016. Entitlement to service connection for prostate cancer Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 – or “nexus” – between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Veteran has provided medical records which indicate a diagnosis of prostate cancer, satisfying the “present disability” requirement of his claim. But there is no indication of prostate cancer in his service treatments records and he does not suggest that he began to experience the disease in service. Instead, he contends that, although he did not develop prostate cancer until many years after his discharge from the Air Force, the disease was likely the result of in-service exposure to two hazardous substances – herbicides and radiation. Veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 are presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6). If a veteran who was exposed to an herbicide agent during active duty service later develops any of a list of diseases – including prostate cancer – the law further presumes that the disease is service connected. 38 C.F.R. § 3.309(e). Service connection for disabilities that are claimed to be the result of exposure to ionizing radiation can be demonstrated in three different ways. First, there is a rebuttable presumption of service connection for radiation-exposed veterans who later develop one of the diseases listed in 38 C.F.R. § 3.309(d). VA has determined that a positive association exists between the listed diseases and radiation exposure. See 38 C.F.R. § 3.309(d)(2). Service connection may also be established if a radiation-exposed veteran develops a “radiogenic disease” – one that may be induced by ionizing radiation. A radiogenic disease can be either one of the diseases listed at 38 C.F.R. § 3.311(b) or an unlisted disease, if competent scientific or medical evidence establishes that the claimed condition is a radiogenic disease and if VA’s Under Secretary for Benefits determines that a relationship, in fact, exists between the disease and the veteran's radiation exposure in service. The third method of establishing service connection for a claimed disability based on exposure to ionizing radiation is direct proof that radiation caused the claimed disability. Direct service connection may be established by competent evidence establishing that a medical nexus exists between the claimed condition and exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). “[T]his route includes the difficult burden of tracing causation to a condition or event during service.” Id. Because prostate cancer is not listed in 38 C.F.R. § 3.309(d)(2), the first method of demonstrating entitlement to benefits based on exposure to radiation – the rebuttable presumption of service connection – does not apply to this case. But prostate cancer is classified as a “radiogenic disease” by 38 C.F.R. § 3.311. Because the Veteran developed prostate cancer after service, after the expiration of the presumptive periods specified in either 38 C.F.R. §§ 3.307 or 3.309, and he contends his disease is the result of ionizing radiation, the AOJ was required to follow the special procedures for the development of radiation-related claims described in 38 C.F.R. § 3.311. Factual Background The Veteran submitted a written statement describing participation in “air sampling” missions. He wrote that he travelled in aircraft which collected samples of radioactive material in the atmosphere in the immediate aftermath of atomic weapons tests. According to the Veteran, he also acted as a courier for radioactive samples, which were placed in lead containers, which the Veteran carried to a laboratory in Boston, Massachusetts. In the same statement, the Veteran wrote that he travelled form Hawaii to Easter Island off the coast of Chile in a merchant ship during the summer of 1966 to arrange a shipment of supplies which were needed for a “special mission” that would take place on the island. According to the Veteran, before the Veteran boarded the ship in Hawaii, the ship had transported ammunition to Vietnam. In a later statement, dated April 2009, he identified the ship as the USNS Robinson and suggested that, because of the ship’s visit to Vietnam, he suspected he had been exposed to Agent Orange residue. To assist the Veteran in obtaining potentially relevant evidence, an employee of the AOJ wrote to the Air Force requesting verification of the Veteran’s risk of radiation exposure. In July 2012, the RO received a letter from the Air Force Technical Applications Center, which indicates that the Veteran “more than likely participated in a radiation-risk activity while on active duty with the 1009th Special Weapons Squadron and the 1155th Technical Operations Squadron.” The letter requested additional information from the AOJ. The AOJ responded by sending the Air Force all available DD-214 Forms, the Veteran's most recent Airman Military Record, a list of units to which the Veteran had been assigned, and his telephone number. In May 2013, VA received a letter from a senior health physicist on behalf of the Air Force. According to the letter, the Air Force searched the occupational radiation exposure monitoring records of its Master Radiation Exposure Registry, but no data was found concerning the Veteran. The letter further indicated that this registry contains data going back to 1947, but acknowledged the existence of individual cases “where early records, especially DD Form 1141 [Veteran’s Record of Occupational Exposure to Ionizing Radiation], were maintained in the individual's military medical record or by the local unit and were not forwarded for inclusion in the central repository.” The physicist also wrote that an inquiry had been sent to the Air Force Technical Applications Center (AFTAC), which determined that “although [the Veteran] was involved in collection activities, they have no records indicating that he was exposed to radiative materials in sufficient quantities to result in a measurable radiation dose. Therefore, AFTAC did not provide dose estimate to [the Veteran].” Finally, the letter indicates that the Veteran worked around gas collection spheres between 1956 and 1960, but that, according to historical records, gas collection spheres contained only trace levels of radioactive material. According to the physicist, “The amount of radioactive material in the spheres was well below levels that would result in a quantifiable radiation dose.” Based on the information in the physicist’s letter, the AOJ continued to deny service connection for prostate cancer. But the Board remanded the claim in March 2016 because the AOJ had not yet completed the development procedures required by 38 C.F.R. § 3.311. As the Board explained, the AOJ had failed to forward the Veteran’s records to the Under Secretary of Health for preparation of a radiation dose estimate, to the extent feasible, as required by the regulation. The Board also noted that one of the performance evaluations in the Veteran’s service personnel records, describing his duties between October 1957 and June 1958, mentions his participation in “such projects as Hardtack, Millrace and Crock Pot.” “Operation Hardtack I” was a series of atomic tests between April and October 1958. See 38 C.F.R. § 3.309(d)(1)(iv)(O). Since these dates overlapped with the period relevant to the performance evaluation, the Board instructed the AOJ to attempt to obtain radiation exposure records from the specific units to which the Veteran was assigned. On remand, the AOJ requested information about the Veteran’s potential radiation exposure from the Air Force Historical Research Agency, the Air Force Personnel Center, the National Personnel Records Center (NPRC), the Defense Threat Reduction Agency, and the Air Force Medical Support Agency (AFMSA). Except for the AFMSA, all of these organizations responded to the AOJ’s requests. In November 2016, the Air Force Historical Research Agency responded by indicating that their collection of documents “consists primarily of unit histories.” The agency did not possess any individual personnel records. If the Veteran was given a DD 1141 radiation exposure form, the Agency explained, the form was likely either in the possession of the Air Force Medical Support Agency or, if it stayed with his unit, the National Archives. A telephone call summary indicates that, in August 2017, the Air Force Personnel Center indicated that, based on the dates of the Veteran’s service, any relevant information was likely with the National Archives. After obtaining a written authorization from the Veteran, the AOJ requested records from the National Archives. The National Personnel Records Center (NPRC), a large office within the National Archives, responded by providing copies of separation documents, most of which appear to be duplicates of information previously obtained by the AOJ. The NPRC further indicated that the requested radiation information form (DD 1141) was “not a matter of record.” In response to the AOJ’s requests, the Defense Threat Reduction Agency (DTRA) provided a detailed letter in June 2018. The letter cited the definitions of “radiation risk activity” and “On-site participation in a test involving the atmospheric detonation of a nuclear device” in 38 C.F.R. § 3.309. According to the letter, Agency personnel reviewed the Veteran’s service record and the morning reports of the units to which he was assigned from 1956 to 1959 (coinciding with the performance review which mentioned Operation Hardtack). The purpose of this review was “to verify his possible presence at the Pacific Proving Ground (PPG), the Nevada Test Site (NTS), and the South Atlantic Ocean.” The letter includes a table with the dates of the various nuclear tests and the Veteran’s whereabouts at the time. The table indicates that, during Operation Hardtack I (April 28 to October 31, 1958), the Veteran was at various locations in Alaska, Hawaii, and the continental United States. He was not at the Pacific Proving Ground, the Nevada Test Site or the South Atlantic Ocean. The DTRA letter confirmed that, according to available historical records, “[the Veteran] served as an official courier for classified material aboard air transportation from McClellan [Air Force Base] to Boston during July 1957; they, however, do not document the contents of the transported classified material. Additionally, after a search of dosimetry data, we found no record of radiation exposure for him.” The AOJ made many requests to the Surgeon General of the Air Force Medical Support Agency (Radiation Health). The first of these was mailed in March 2017. There were additional requests by mail in October 2017, January 2018, January 2019, and June 2019. The AOJ also sent similar requests by electronic mail in June 2017 and October 2017. An Air Force officer apparently assigned to the Air Force Medical Support Agency acknowledged the second request and suggested that the inquiry should be forwarded to the postal address marked on the subsequent mailing requests. But despite three subsequent requests by mail, the Air Force Medical Support Agency never provided a substantive answer to the requests for radiation exposure information. The AOJ regularly mailed letters to the Veteran informing him of the results of these information requests. Pursuant to the Board’s remand orders, the AOJ asked the Veteran to provide more information about his potential exposure to radiation, inviting him to complete a Radiation Risk Activity Information Sheet (Form RRAIS). The Veteran replied in July 2016, indicating that the form, which asks the claimant to provide information about the circumstances of nuclear tests, “does not apply to my case. I was never exposed to any weapon testing while in the military and never claimed that in my original claim.” Instead, he explained that he “could have had possible exposure to nuclear material” during his service at McClellan Air Force Base in California because there was a laboratory on the base which analyzed “samples obtained from atomic or hydrogen weapons test[s] throughout the world.” According to a subsequent report of information form, the Veteran spoke with an employee of the AOJ on the telephone in October 2018 to discuss these samples. The form indicates that the Veteran, “informed me that he did not directly work with the material but was in the department that did and is unable to release information about it since it’s classified top secret. . .” Having collected this information, the AOJ requested a radiation dose estimate and advisory medical opinion from the Under Secretary for Health. The estimate, in the form of a memorandum dated August 2019, reviewed the information about the Veteran’s Air Force service and acknowledged his documented work around gas collection spheres. Like the earlier letter of the Air Force health physicist, the memorandum indicates that “only trace amounts of radioactive material were present in these spheres and [the amount of radiation] was well below levels that would have resulted in a quantifiable radiation dose.” Making liberal assumptions for the purpose of giving the Veteran the benefit of the doubt, the memorandum estimated “a dose of 2.5 rem (total effective equivalent) to the Veteran (0.5 rem per year x 5 calendar years of working with gas collection tubes and sample transport).” The memorandum reviewed the Veteran’s age, the interval between the end of his active duty service (1970) and his initial diagnosis of prostate cancer (2005), and a family history of cancer, including a brother who also developed prostate cancer. Based on this information and the radiation dose estimate, the memorandum concludes that “it is unlikely that prostate cancer was caused by exposure to ionizing radiation during military service.” Pursuant to 38 C.F.R. § 3.311, the Director of the Compensation Service issued her own advisory opinion, also dated August 2019, which concludes that, “It is our opinion that there is no reasonable possibility that the Veteran’s prostate cancer was the result of ionizing radiation during service.” Analysis As a preliminary matter, the Board finds that the AOJ adequately complied with the procedures of 38 C.F.R. § 3.311 and its March 2016 remand orders. As noted, the AOJ made considerable efforts to obtain information about the Veteran’s claimed radiation exposure and, as required by the regulation, forwarded the records to the Under Secretary for Health for the preparation of a radiation dose estimate. The AOJ did not obtain a response to its post-remand information requests to the Air Force Medical Support Agency. But for at least two reasons, the AOJ’s decision to abandon its efforts to obtain a response is consistent with its duty to assist the Veteran. First, the May 2013 letter from the Air Force Senior Health Physicist is written on behalf of Air Force Headquarters in Washington, DC. But the credentials of the author, listed below his signature, are: “AF Radioisotope Committee Secretariat AF Medical Support Agency Office of the Surgeon General.” The full name of the agency to which the AOJ unsuccessfully tried to obtain information for years post-remand is “Surgeon General of the Air Force Medical Support Agency (Radiation Health).” Since it appears that the AOJ received a response from the agency before the remand, a post-remand response is not likely to have provided any further useful information. Secondly, after mailing five letters and sending two requests by electronic mail over the course of more than two years, it is reasonable to suppose that further efforts to obtain a response would be futile. See 38 C.F.R. § 3.159(d). The Board has considered the possibility that Stegall v. West, 11 Vet. App. 268 (1998) requires another remand of this appeal because the AOJ did not send separate requests for radiation exposure information to the specific Air Force units to which the Veteran was assigned during his service at McClellan Air Force Base and during his work transporting samples. It is true that such requests were requested in the March 2016 remand. But based on the other information obtained by the AOJ, it is clear that another remand would serve no useful purpose. At the time of the remand, the Board had reviewed the May 2013 letter indicating that, although radiation exposure information forms (DD 1141) were usually forwarded to a central repository for inclusion in the Master Radiation Registry, there had been cases in which the forms remained with the person’s individual military medical record or with the records of his local unit. Having seen a specific reference to Operation Hardtack in his performance evaluation for late 1957/early 1958, the Board had reason to suspect that the Veteran may have been issued a radiation exposure information form at the time of his participation in a known atmospheric nuclear weapons test and his may have been one of the cases in which his assigned unit neglected to forward that form to the central repository. But in his July 2016 letter to the AOJ the Veteran clarified that, “I was never exposed to any weapon testing while in the military. . .” This information is consistent with the DTRA’s June 2018 letter, which accounted for the Veteran’s whereabouts during all of the recorded atmospheric nuclear weapons tests between 1956 and 1959. It is also consistent with the full text of the performance evaluation, which reads: “The airman has been instrumental in the compiling and shipping of hundreds of items of supplies and equipment to such projects as Hardtack. . .” It is reasonable to suppose that, although he may have helped prepare supplies which were later used in connection with Operation Hardtack, he was not personally close to the location of any weapons testing. Moreover, the information provided by the DTRA was based on a review of unit morning reports, which means that any unit-specific information concerning radiation exposure would likely have been identified by the DTRA. When the AOJ contacted the Air Force Personnel Center, they were advised that, based on the date of the Veteran’s discharge from active duty, the requested records should be with the National Archives or the NPRC. The AOJ received similar guidance from the Air Force Historical Research Agency. This guidance makes it even less likely the AOJ would successfully recover the missing radiation exposure information by making a request to the specific units of assignment. For these reasons, the Board finds that the AOJ substantially complied with the terms of its March 2016 remand and satisfied its duty to assist the Veteran. As for the merits of the claim for service connection for prostate cancer, the Board finds that, on the issue of whether his disability is related to his exposure to radiation in service, the most persuasive evidence comes from the radiation dose estimate and advisory opinion issued by the Under Secretary of Health in August 2019. That opinion – prepared by experts in the study of the effects of radiation exposure on health – accurately reviews the facts of the Veteran’s Air Force service and the timing of his initial prostate cancer diagnosis in relation to his work with gas collection spheres in the Air Force. In the August 2019 opinion, the experts indicated their familiarity with the gas collection spheres and their statements, which indicate that proximity to these spheres indicates exposure to only trace amounts of radioactive material, is consistent with the information provided earlier by the Air Force Health physicist in May 2013. Having analyzed this information, the August 2019 opinion arrived at specific radiation dose estimates after making assumptions which, in the absence of more specific information, were explicitly designed to be generous ot the Veteran. By contrast, the Veteran has submitted no information suggesting that he has the training or experience necessarily to provide an expert opinion on a complex medical question, such as the effect of radiation on the development of prostate cancer more than forty years later. Even if he did have the necessary expertise, the Veteran has offered no explanation for his apparent belief that the level of radiation exposure associated with his Air Force duties as a laboratory courier and when working with gas collection spheres in the late 1950s would be sufficient to cause prostate cancer. On the contrary, his own statements are full of expressions of uncertainty. For instance, in April 2007, the AOJ received a letter in which he wrote that, “Whether I was exposed to radiation is unknown.” As the Board has explained already, the presumption of service connection for certain radiation-exposed veterans in 38 C.F.R. § 3.309(d) does not apply to this case. This means that, although he is entitled to the special development procedures described in 38 C.F.R. § 3.311, the burden ultimately remains on the Veteran to prove that a causal relationship between his current disability and his radiation exposure is at least as likely as not. Based on the information obtained by the AOJ – particularly the August 2019 dose estimate and advisory medical opinions – the Board finds that this relationship is less likely than not. Notwithstanding these findings, the Veteran would still be eligible for compensation for his prostate cancer if he was exposed to herbicides in service. As noted, prostate cancer is presumptively linked to herbicide exposure under 38 C.F.R. § 3.309(e), which means that, if he were exposed to herbicides, the presumption would relieve the Veteran of the burden of proving that the herbicides caused him to develop prostate cancer. In April 2009, the Veteran wrote that, “I was not in Vietnam” where, at the time of the ocean voyage described in his statements, exposure to herbicides would be presumed. See 38 U.S.C. § 1116. Since no presumption of herbicide exposure applies, the success of the Veteran’s claim requires evidence that he was exposed to “an herbicide agent” as that term is defined in 38 C.F.R. § 3.307(a)(6). In another written statement, he indicated that “I could have been exposed to residue from agent orange [which] could have been still aboard this vessel when I was aboard.” The Veteran’s argument that he was exposed to herbicides is speculative and even the expression he used – “I could have been exposed” – is too vague and tentative to satisfy the relevant legal standard. Cf. Winsett v. West, 11 Vet. App. 420, 424 (1998) (terminology equivalent to “may or may not” is an insufficient basis for awarding service connection). There is no evidence from any source describing any specific substance on the ship in which the Veteran travelled from Hawaii to Easter Island in 1966. The Veteran submitted a statement, dated May 2006, apparently written by another Air Force Veteran. This statement indicates that the author remembers working with the Veteran, at some time between April and October of 1966, to accomplish an unspecified mission at a remote and unidentified site which was “accessible only by sea.” The author indicates that he reached the site by a different ship, i.e., he did not travel there with the Veteran. The Veteran came on a different ship. The statement provides no evidence suggesting that herbicides were used at the test site or that herbicides were present on the Veteran’s ship. The Veteran’s statements also suggest that he may have been exposed to herbicides in Panama. But he has provided no information whatsoever to explain why he believes this is true. No presumption of herbicide exposure applies to Veterans who travelled to Panama or to the island visited by the Veteran in 1966. The evidence available is not sufficient to support a finding that the Veteran was exposed to an “herbicide agent” as defined in 38 C.F.R. § 3.307(a)(6)(i) (“For the purposes of this section, the term ‘herbicide agent’ means a chemical in an herbicide used to support United States allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically, 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.”). The Board’s findings on the proposed application of the presumptions concerning radiation and herbicide exposure do not necessarily prevent the Veteran from obtaining compensation for prostate cancer by proving service connection directly. See 38 U.S.C. § 1113(b) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009) (“Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection.”). But the Board has reviewed the Veteran’s service treatment records and, as noted, they do not include any indication that he began to experience prostate cancer in service. In his statements, he has identified only herbicides and radiation as potential causes of his prostate cancer and, as noted, his post-service medical records do not indicate the presence prostate cancer until 2005, approximately thirty-five years after his discharge from active duty. See Maxon v. West, 12 Vet. App. 453, 459 (1999); aff'd sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). Under these circumstances, the preponderance of the evidence is against a finding that the Veteran’s prostate cancer had its initial onset in service. The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of a claim for service connection. See 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Because the preponderance of the evidence weighs against a finding that his prostate cancer is related to any disease, injury or event in service, including exposure to herbicides or ionizing radiation, the benefit of the doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and the claim must be denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.