Citation Nr: 21004551 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 18-02 761 DATE: January 27, 2021 ORDER Entitlement to service connection for bladder cancer, to include as due to exposure to ionizing radiation, is denied. FINDINGS OF FACT 1. The Veteran is not shown by competent and probative evidence to have been exposed to ionizing radiation in service. 2. The Veteran’s bladder cancer was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bladder cancer are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the U.S. Air Force from July 1961 to July 1965. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in November 2015. This case was previously remanded to the AOJ in February 2019, for additional development, and was subsequently returned to the Board. 1. Service connection for bladder cancer The Veteran contends that his bladder cancer is due to exposure to ionizing radiation and/or radar while performing maintenance work on aircraft during service in the Air Force at Griffiss Air Force Base in New York. See his July 2015 claim, December 2015 notice of disagreement, and January 2018 substantive appeal. The Veteran asserts that he was exposed to radiation from radar and other equipment and “H-bomb payloads,” while maintaining equipment on B-52s and KC-135s. In his notice of disagreement and substantive appeal, he said that he was required to wear a dosimetry badge to monitor his radiation exposure during such work at the Strategic Air Command. He said that some parts of these aircraft were marked as radiation areas. In a July 2015 statement, he said the B-52s often had “H-bombs” on them. He stated that his duties included testing emergency and field survival equipment on these aircraft. He reiterated these contentions in subsequent correspondence. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has been diagnosed with bladder cancer, as evidenced by an April 2010 treatment note by a private physician, A.J.C., MD. Malignant tumors are an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. VA and private medical records reflect that the Veteran receives BCG therapy and there is no recurrence of the carcinoma of the bladder. See October 2015 letter from Dr. C. However, bladder cancer was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Service treatment records are negative for bladder cancer, and his genitourinary system was normal on separation examination in July 1965. Private treatment records show the Veteran was not diagnosed with bladder cancer until approximately 1995, decades after his separation from service and decades outside of the applicable presumptive period. See March 2010 private medical record, in which Dr. C. indicated that the Veteran was diagnosed with carcinoma in situ of the bladder 15 years earlier. The Veteran does not contend, and the evidence does not reflect, that he had continuous symptoms of bladder cancer since service. Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997). First, cancer of the urinary tract, including the urinary bladder, is presumptively service connected specific to radiation-exposed Veterans. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). Second, “radiogenic diseases” such as urinary bladder cancer may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303 (d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. The United States Court of Appeals for Veterans Claims (Court) has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994)). A “radiation-exposed veteran” is defined by 38 C.F.R. § 3.309 (d)(3) as a veteran who, while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity. “Radiation-risk activity” is defined to mean on site participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309 (d)(3)(i), (ii). Radiation-risk activity also includes certain service on the grounds of a gaseous diffusion plant in Paducah, Kentucky, Portsmouth, Ohio, or at area K25 at Oak Ridge, Tennessee; or certain service on Amchitka Island, Alaska. See 38 C.F.R. § 3.309 (d)(3)(ii). Specifically, service before January 1, 1974, on Amchitka Island, Alaska, qualifies as a radiation-risk activity if, during such service, the Veteran was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests. 38 C.F.R. § 3.309 (d)(3)(ii)(D)(2). The Court has taken judicial notice that radar equipment emits microwave-type, non-ionizing radiation, see Rucker v. Brown, 10 Vet. App. 67, 69, 71-72 (1997), and non-ionizing exposure from radar equipment is not the type of radiation exposure addressed by the VA regulations found at 38 C.F.R. §§ 3.309 and 3.311. When it has been determined that a veteran has been exposed to ionizing radiation in service, and he subsequently develops a potentially radiogenic disease, the claim will be referred to the Under Secretary for Benefits for further consideration. The Under Secretary is to consider the claim with reference to specified factors and may request an advisory medical opinion from the Under Secretary for Health; if, after this consideration, the Under Secretary determines that there is no reasonable possibility that the veteran’s disease resulted from radiation exposure in service, the Under Secretary shall so inform the RO in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311. However, in this case, the preponderance of the evidence shows that the Veteran was not exposed to ionizing radiation in service. Service personnel records show that the Veteran was assigned to Itazuke Air Base in Japan from November 1961 to November 1963, and to Griffiss Air Force Base (AFB), in New York from November 1963 to July 1965. His DD Form 214 lists his primary military occupational specialty (MOS) as inventory management specialist. Service personnel records show that he was a records clerk in Japan from 1961 to 1963. While at Griffiss AFB, he was assigned to Headquarters ROAMA (Rome Air Materiel Area), and was an organization supply specialist and an inventory management specialist with BEMO (Base Equipment Management Office). His performance reports show that his primary duty was delivering equipment from October 1963 to January 1965. The Veteran’s service personnel records do not include a DD Form 1141 (Record of Occupational Exposure to Ionizing Radiation). By a letter dated in October 2020, the U.S. Department of the Air Force (USAF) stated that it had reviewed the occupational radiation exposure monitoring records in the USAF Master Radiation Exposure Registry (MRER) for the Veteran, and found no external or internal occupational radiation exposure data for him. The USAF stated that with regard to the Veteran's assertion that he wore a radiation monitor in service, he was likely referring to the DT-60/PD Badge. Historically, many Air Force personnel at nuclear capable units were issued DT-60 accident dosimeters for medical readiness purposes to measure exposures in the unlikely occurrence of a high-radiation exposure, e.g. nuclear criticality. These devices were only capable of recording high exposures and were not sensitive to occupational-level exposures. It was noted that because the U.S. has never experienced a high radiation exposure from a fielded nuclear weapon, records of exposures recorded by such devices are of no benefit today. With regard to radiofrequency radiation, the consensus of scientific advisory bodies such as the National Council on Radiation Protection and Measurements (NCRP), the World Health Organization (WHO) and the National Radiological Protection Board (NRPB) is that there are no long-term effects (including cancer) from low-level exposures to radiofrequency radiation (RFR). An extensive epidemiological study of US Navy personnel working with radar systems did not find any adverse health effects that could be attributed to RFR exposure. Although the Veteran has been diagnosed with urinary bladder cancer, a listed radiogenic disease under 38 C.F.R. § 3.311 (b)(2), the Board finds that he was not a participant in a radiation-risk activity, he is not considered a radiation-exposed veteran, and he was not exposed to ionizing radiation in service. Service connection for bladder cancer may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s bladder cancer and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. By a letter dated in June 2015, Dr. C. diagnosed recurrent bladder cancer and opined that it is at least as likely as not that radiation exposure from the Veteran’s military job caused his bladder cancer. The rationale was that bladder cancer is well known to be related to environmental exposure particularly toxic exposures and radiation exposure, and the Veteran's “time in the military is more sufficient to account for increased risk of these cancers.” The Board finds that Dr. C.’s private medical opinion was based on an inaccurate factual premise (that the Veteran was exposed to ionizing radiation in service). An opinion based on an inaccurate history has essentially no probative value. See Kightly v. Brown, 6 Vet. App. 200 (1994). That is the case here. There is no competent evidence linking current bladder cancer with events in service, or showing that it manifested to a compensable degree within the first post-service year. While the Veteran believes his bladder cancer is related to an in-service injury, event, or disease, including exposure to ionizing radiation or radar, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Based on the foregoing, the Board finds that the preponderance of the probative evidence is against a finding of service connection for bladder cancer on any basis. Thus, the claim for service connection is 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 Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.