Citation Nr: 20052977 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 16-03 046 DATE: August 10, 2020 ORDER Entitlement to service connection for penile cancer, to include as due to ionizing radiation exposure, is denied. Entitlement to service connection for throat cancer, to include as due to ionizing radiation exposure, is denied. Entitlement to service connection for a thyroid disability, to include as due to ionizing radiation exposure, is denied. FINDINGS OF FACT 1. The Veteran has not been shown to have a radiogenic disease of the thyroid. 2. The Veteran's penile cancer, throat cancer and hypothyroidism did not manifest in service or within one year thereafter, and are not etiologically related to service, to include exposure to ionizing radiation therein. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for penile cancer have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.311. 2. The criteria for entitlement to service connection for throat cancer have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.311. 3. The criteria for entitlement to service connection for a thyroid disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1945 to October 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appealed the decision in February 2014 and the RO issued a Statement of the Case (SOC) in November 2015; the Veteran perfected his appeal in January 2016. In October 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the hearing is of record. In a January 2018 decision, the Board denied entitlement to service connection for penile cancer, throat cancer, and a thyroid condition. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In November 2018, the Court granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties) on the grounds that the Board failed to satisfy the duty to assist the Veteran and provide adequate reasons or bases for its findings. The Veteran testified during his October 2017 Board hearing that he was exposed to radiation while working as a military policeman at White Sands Missile Range located near Alamogordo, New Mexico. Specifically, he claims that he was exposed to ionizing radiation during Operation Trinity, the first nuclear bomb test, during service. The record shows that the RO attempted to secure the Veteran’s service treatment records; however, the RO was notified in September 2012 that his service records were destroyed by fire in 1973 and could not be reconstructed. In its decision, the Board noted that the U.S. Department of Energy submitted a dose estimate in June 2013 stating that radiation dosimetry studies were unavailable. As such, the Board found that absent competent evidence that the Veteran was exposed to radiation in this case, VA was not required to forward the claim for further consideration to the Under Secretary for Benefits. The Parties agreed that VA failed to satisfy the duty to assist the Veteran in the development of his claims, specifically by not adequately attempting to verify his exposure to ionizing radiation. The Parties stated that because military records could not establish the presence or absence of the Veteran from the site where the exposure is claimed to have occurred, the Veteran’s presence at the site will be conceded pursuant to 38 C.F.R. § 3.311 (a)(4)(i). The Parties agreed that on remand, VA must concede the Veteran's presence at White Sands missile range and seek to establish a radiation dose estimate based on his presence where he claims to have been exposed. In May 2019, the Board remanded the claim for additional development consistent with the JMR. In August 2019, the RO referred the case to VA Compensation Service, Policy Staff in order to obtain an advisory opinion from the Under Secretary of Health; the advisory opinion was subsequently rendered in November 2019. A Supplemental Statement of the Case (SSOC) was then issued in April 2020; the Board finds substantial compliance with the Board’s May 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). Service Connection The Veteran contends that service connection is warranted for his penile cancer, throat cancer and thyroid disability based on his exposure to ionizing radiation during service. 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; 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 between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as malignant tumors and hypothyroidism (endocrinopathies), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Here, as there is no evidence that any malignant tumors or hypothyroidism had manifested within one year of the Veteran's separation from service, presumptive service connection for penile cancer, throat cancer, and a thyroid disability, to include hypothyroidism, is not warranted. Service connection for disabilities that are claimed as due to ionizing radiation exposure during service can be established through two presumptive paths. One involves claims based on participation in a "radiation risk activity," including onsite participation in a test involving the atmospheric detonation of a nuclear device. See 38 C.F.R. § 3.309 (d). The term "onsite participation" includes the performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test during the official operational period of an atmospheric nuclear test or presence at the test site or other test staging area to perform official military duties in connection with completion of projects related to the nuclear test, to include decontamination of equipment used during the nuclear test, during the six month period following the official operation period of an atmospheric nuclear test. See 38 C.F.R. § 3.309 (d)(3)(iii). Here, the Veteran's claims are not based on participation in a defined radiation risk activity. For instance, in a May 2013 Radiation Risk Activity Information Sheet, the Veteran stated that he served as a military policeman at the White Sands Missile Range near Alamogordo, New Mexico from 1945 and 1946. He reported that he was exposed to radiation as a result of witnessing two to three explosions related to Operation TRINITY in 1945 from a nearby trench. In addition, during his October 2017 Board hearing, the Veteran testified that he was exposed to a “dust storm” caused by nuclear testing that made it difficult to breathe. Consequently, soldiers had to evacuate their duty stations and go to Ruidoso for a couple of weeks or take cover in trenches for a couple of hours in order to be able to breathe. See Board hearing transcript at 5, 13. Furthermore, the Board recognizes that VA has conceded the Veteran’s in-service radiation exposure during Operation TRINITY and he is thus considered a “radiation-exposed veteran” for the purposes of 38 C.F.R. § 3.309 (d). However, more significantly, he has not been shown to have any of the enumerated diseases listed under 38 C.F.R. § 3.309 (d)(2) which would qualify him for service connection on a presumptive basis under this particular section. In this regard, the record shows that he has been diagnosed with penile cancer, but cancer of the genitalia is not one of the diseases listed under 38 C.F.R. § 3.309 (d)(2). Second, the Veteran has claimed that he was diagnosed and treated for throat cancer; however, the competent evidence of record does not show that he has been diagnosed as having pharynx cancer or esophageal cancer which are qualifying diseases listed under this section. Lastly, while thyroid cancer is listed under 38 C.F.R. § 3.309 (d)(2) as a disease presumptively linked to radiation exposure, the Veteran has not been shown to have thyroid cancer, but rather, the record shows he has been diagnosed with hypothyroidism. As the record does not reflect that the Veteran has been diagnosed with any of the qualifying diseases referred to in 38 C.F.R. § 3.309 (d)(2), service connection is not warranted for his claimed disabilities pursuant to 38 C.F.R. § 3.309 (d). The other path to presumptively establish service connection for a "radiogenic disease" based on exposure to ionizing radiation during service is via 38 C.F.R. § 3.311. That section provides that 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 that the disease is a result of exposure to ionizing radiation during service, an assessment will be made as to the size and nature of the radiation dose or doses. 38 C.F.R. § 3.311 (a)(1). Here, the Veteran claims to have been diagnosed and treated for cancers of the penis and throat as a result of exposure to ionizing exposure during service. The Board notes that any type of cancer is considered to be a radiogenic disease under 38 C.F.R. § 3.311 (b)(2). The Board also notes that in its January 2018 decision, service connection was denied for cancers of the penis and throat because there was no competent evidence demonstrating that the Veteran had been diagnosed with these cancers during the appeal period. Consequently, based on the Veteran’s October 2017 hearing testimony concerning his continued treatment for residuals of penile and throat cancer throughout the appeal period, the Parties agreed that the Board must refrain from denying these claims based on no current disability. Accordingly, the provisions of 38 C.F.R. § 3.311 are for application as they relate to the Veteran’s claims regarding the radiogenic disease of cancers of the penis and throat. The Veteran also attributed his thyroid disability to ionizing radiation exposure during service. However, the competent evidence of record shows that he has been diagnosed with hypothyroidism, but not thyroid cancer or non-malignant thyroid nodular disease which are considered radiogenic diseases under 38 C.F.R. § 3.311 (b)(2). Notably, under 38 C.F.R. § 3.311 (b)(4), other claimed diseases may be considered radiogenic if the appellant has cited or submitted competent scientific or medical evidence that supports that finding, that is not the case here. In this case, the Veteran has not submitted any such evidence indicating that hypothyroidism is considered a radiogenic disease. Because the Veteran has not been shown to have a radiogenic disease of the thyroid, the provisions regarding ionizing radiation exposure outlined in 38 C.F.R. § 3.311 are not for application with respect to his thyroid disability. Finally, service connection may nevertheless be established for diseases diagnosed after discharge by showing that the disease was incurred in or aggravated by service with evidence of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Service Connection for penile cancer, throat cancer and a thyroid condition The Veteran contends that his cancers of his penis and throat as well as his thyroid condition (diagnosed as hypothyroidism) were caused by his in-service ionizing radiation exposure. The Veteran is currently diagnosed with hypothyroidism and as previously discussed, he testified to undergoing treatment for residuals of penile cancer and throat cancer during the pendency of the appeal. Furthermore, the Veteran’s presence at the White Sands Missile Range in 1945 during atmospheric nuclear detonation in connection with Operation Trinity has been conceded and qualifies as an in-service event to which he was exposed. Thus, the first two elements of service connection have been satisfied. The Board notes that the Veteran does not claim that he sought treatment during service for complaints related to his genitalia, throat, or thyroid. During his October 2017 Board hearing, he testified that he first manifested symptoms related to cancer within two years of discharge but that he was diagnosed with cancers of the penis and throat years after discharge. See Bd. Hg. Transcript at 6-7. In a September 2012 statement, the Veteran indicated that he had a pre-malignant wart removed from his penis in 1947 and had part of his penis removed due to cancer in 2003. In addition, he stated that precancerous tissue was removed from his throat in 1952 and a precancerous growth was removed from his neck in 1961. Finally, he indicated that his thyroid disability was diagnosed in 1986 and has been an ongoing condition since then. In an April 2013 statement, he reported that he had a pre-cancerous wart removed from his penis in 1948. A private treatment record shows that in 2001, the Veteran underwent wide excision of a lesion caused by carcinoma of the glans penis. In a 2012 private treatment record, the Veteran was diagnosed as having a genital wart and history of penile cancer. A review of the Veteran’s current VA treatment reports shows that he is diagnosed with hypothyroidism for which he is prescribed medication. Furthermore, the Veteran has stated that he was diagnosed and treated for throat cancer years following discharge from service. Based on the aforementioned lay and medical evidence of record, the Board finds that the Veteran’s claimed disabilities did not have their onset during service or within the applicable one-year presumptive period following separation from service. The central issue in this case is whether the Veteran’s penile cancer, throat cancer and hypothyroid disability are causally related to the in-service event of ionizing radiation exposure. The Board acknowledges that VA has not requested VA examinations or medical opinions in connection with this appeal. VA must provide a medical examination or opinion if the evidence of record: (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of a disability; (2) establishes that the claimant suffered an event, injury, or disease in service, or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, or with another service-connected disability; but (4) does not contain sufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The Board finds that in compliance with the JMR, and as a threshold matter, an advisory opinion first needed to be obtained from the Under Secretary of Health. Following a review of the advisory opinion, the Board has determined that the duty to assist the Veteran in obtaining a VA examination or medical opinion in connection with his claims has not been triggered. A November 2019 advisory opinion from the Executive Director of Compensation Service reflects that the Deputy Chief Consultant of Post Deployment Health Services (PDHS) determined it was unlikely that the Veteran's penile cancer, throat cancer and benign thyroid condition were caused by exposure to ionizing radiation during military service. The advisory opinion stated that radiation dose is the prime factor in determining causation of a disease and exposure to radiation by proximity alone is not the cause of the disease in the absence of presumption. The dose must be determined first through direct measurement or reconstruction methodology before causation can be addressed. In the Veteran’s case, the dose must be reconstructed because there is no record of radiation monitoring. Next, assuming that the Veteran was occupationally exposed, the following is true: when an occupationally exposed worker is not expected to receive a radiation dose exceeding 1/10 of the annual limit of 5 rem per year (0.5 rem), monitoring is not required. A dose of 1.0 rem (total effective dose equivalent) can be assigned to the Veteran (0.5 rem per year x 2 calendar years of service at White Sands). This assigned dose gives the benefit of the doubt to the Veteran regarding his claim of potential exposure to radiation versus there being no record of dose. The advisory opinion then cites to a position statement (PS010-3) from the Health Physics Society, entitled Radiation Risk in Perspective, revised in May of 2016. The position statement indicates that “The average annual equivalent dose from natural background radiation in the United States is about 3 mSv [0.3 rem]. A person might accumulate an equivalent dose from natural background radiation of about 50 mSv [5 rem] in the first 17 years of life and about 250 mSv [25 rem] during an average 80-year lifetime. Substantial and convincing scientific data show evidence of health effects following high-dose exposures (many multiples of natural background); however, below levels of about 100 mSv [10 rem] above background from all sources combined, the observed radiation effects in people are not statistically different from zero.” The advisory opinion concluded that since the Veterans’ estimated lifetime total radiation dose (1.0 rem) did not exceed 0.1 Sv (10 rem) above natural background, it is unlikely that his penile cancer, throat cancer, and/or benign thyroid condition were caused by exposure to ionizing radiation during his active service Based on these findings and conclusions of the Deputy Chief Consultant of PDHS, the Director of Compensation Service concluded that there was no reasonable possibility that the Veteran's penile cancer, throat cancer and benign thyroid condition were the result of exposure to ionizing radiation during service. In support of his claim, the Veteran submitted two private medical opinions. A June 2012 medical statement from Dr. Stuppler indicated that the Veteran was treated for carcinoma of the penis and required a partial penectomy from which he recovered well, and he has been free of any disease for approximately 10 years. The doctor opined that the Veteran’s penile cancer could possibly be related to his radiation exposure. Another opinion was provided by Dr. Ruff, the Veteran’s physician, in March 2019. The Veteran reported a history of multiple types of cancer which required surgical extraction that Dr. Ruff indicated was evidenced upon physical examination. The physician stated that she was unable to provide concrete evidence of a causal relationship between the Veteran’s reported radiation exposure and his cancer diagnoses. She opined that there could be a possible connection between the Veteran’s cancer of the penis and his exposure to radiation during service in 1945. With respect to the central inquiry in this case concerning whether the Veteran’s in-service radiation exposure caused his penile cancer, throat cancer and thyroid condition, the Board finds the November 2019 Under Secretary of Health’s advisory opinion is the most probative evidence of record. In this regard, the advisory opinion was based on review of the Veteran’s claims file, consideration of his medical history and supported by a comprehensive analysis grounded in scientific principles and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In contrast, the nexus opinions provided by the Veteran’s private physicians are speculative in nature, unsupported by any rationale and are entirely based on the Veteran’s statements regarding his health history and radiation exposure. The Board notes that speculative language does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Warren v. Brown, 6 Vet. App. 4 (1993). Therefore, the Board finds that these private medical opinions are of little probative value and inadequate in determining the nature and etiology of the Veteran's claimed disabilities. The Board has considered the Veteran's statements, including his contentions regarding the causal factors and development of his cancers and thyroid disability. However, the Board finds that while the Veteran may report observable symptoms, as a layperson, he is not competent to give a medical opinion on the etiology or cause of his claimed disabilities. The Veteran lacks the adequate medical expertise to render a medical opinion as to the etiology or cause of his disabilities in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Jones v. West, 12 Vet. App. 383, 385 (1999). As such, the Veteran's assertions as to the etiology of his penile cancer, throat cancer and hypothyroidism are not competent or probative evidence for deciding this appeal. (Continued on the next page)   For the foregoing reasons, the Board has determined that the preponderance of the evidence is against finding that service connection is warranted for the Veteran’s penile cancer, throat cancer and a thyroid disability on either a direct or presumptive basis. The Board finds that the competent evidence of record fails to demonstrate that the Veteran has been diagnosed with any of the qualifying diseases specific to radiation-exposed veterans listed under 38 C.F.R. § 3.309 (d); he has not been shown to have a diagnosis of any of the radiogenic diseases of the thyroid listed under 38 C.F.R. § 3.311 (b)(2)(i.e. thyroid cancer, non-malignant thyroid nodular disease or parathyroid adenoma); and the Veteran’s claimed disabilities were not found to have been caused by his in-service radiation exposure. See 38 C.F.R. § 3.311 governing claims based on ionizing radiation exposure; see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that a claimant is not precluded from establishing service connection for a disease with proof of direct causation). Accordingly, the claims for service connection of penile cancer, throat cancer and a thyroid disability, to include as due to ionizing radiation exposure, are denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable in the instant appeal. See 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Krunic, 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.