Citation Nr: 21004657 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-59 823 DATE: January 27, 2021 ORDER The claim of entitlement to service connection for prostate cancer is denied. FINDINGS OF FACT 1. The Veteran was not exposed to ionizing radiation (or Agent Orange) during service. 2. The Veteran’s prostate cancer did not manifest in service, was not continuous since service, and was not shown to a compensable degree within one year of separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer, to include as the result of exposure to radiation, have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.311 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1970 to February 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA). In February 2020, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The claim was remanded in April 2020 for additional evidentiary development and has now been returned for further appellate consideration. Entitlement to service connection for prostate cancer The Veteran asserts that his prostate cancer is the direct result of having been exposed to radiation during service. Specifically, at the February 2020 hearing, the Veteran testified that his military occupational specialty was in law enforcement. He served on several bases during service, to include Kelly Air Force Base in Texas, and Holloman Air Force Base in New Mexico. His primary contention is that he was exposed to radiation when he was stationed at Clear Air Force Station in Alaska which was with the North American Aerospace Defense Command (NORAD). He was around radar installations. He asserts that he could “see the radiation from the ground.” (Tr. at pg. 7.) The Veteran’s service personnel records show that his military service included being stationed at the bases as asserted. There was no overseas service. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime) (2012); 38 C.F.R. § 3.303(a) (2019). 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) (2019). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Prostate cancer, as a malignant tumor, is considered a chronic disease listed under 38 C.F.R. § 3.309(a) (2019). For specific enumerated diseases designated as “chronic” (such as malignant tumors) there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. For the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2019). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b) (2019). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) (2019); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases, such as prostate cancer, shall be service connected even though there is no record of such disease during service. For the purposes of this section, the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307(a)(6), 3.309(e), 3.313 (2019). The record does not show, nor has the Veteran asserted, that he served in the Republic of Vietnam. His service was in the United States. Thus, there is no evidence that the Veteran was exposed to herbicide agents during his service. Therefore, the presumption for herbicide agents during service does not apply in this case. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2019). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d 1372, 1377. The Veteran was diagnosed with prostate cancer in 2010. He underwent radiotherapy for the condition. He attributes this disability to radiation exposure as detailed above. In general, service connection for cancer that has been claimed to be the result of exposure to radiation during service may be accomplished in one of three ways. Ramey v. Brown, 9 Vet. App. 40, 44 (1996). First, certain diseases may be presumptively service connected if they manifest in a “radiation-exposed Veteran,” per statutory definition. 38 U.S.C. § 1112(c)(3)(A) (2012); 38 C.F.R. § 3.309(d)(3)(i) (2019). Second, direct service connection may be found if the Veteran has a “radiogenic disease,” after certain development procedures have been conducted regarding the medical dose assessment for radiation exposure. 38 C.F.R. § 3.311(b)(2) (2019). Third, direct service connection may be established for diseases not listed pursuant to 38 C.F.R. § 3.309(d), or § 3.311 (2019), as radiogenic diseases, by showing that the Veteran’s disability has been incurred or aggravated by service, including under the presumptive service connection for chronic disease. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); Ramey v. Gover, 120 F.3d 1239 (Fed. Circ. 1997); Hardin v. Brown, 11 Vet. App. 74, 77 (1998). A ‘radiation-exposed veteran’ is defined by 38 C.F.R. § 3.309(d)(3) (2019) as a veteran who while serving on active duty, participated in a radiation-risk activity. The term ‘radiation risk activity’ has a specific meaning. It means (1) onsite participation in a test involving the atmospheric detonation of a nuclear device; (2) participation in the postwar occupation of Hiroshima or Nagasaki, Japan during the period August 1945 to July 1946; (3) internment as a prisoner of war in Japan or service on active duty in Japan immediately following such internment immediately after World War II that resulted in an opportunity for exposure to ionizing radiation comparable to that of United States occupation forces in Hiroshima or Nagasaki during the period August 1945 to July 1946; (4) service in which the service member was, as part of his or her duties, present during a total of at least 250 days before February 1, 1992, on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 at Oak Ridge, Tennessee, under certain conditions; service before January 1, 1974, on Amchitka Island, Alaska, or during such period the veteran was exposed to ionizing radiation related to underground nuclear tests; or, (5) service in a capacity which, if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under the Energy Employees Occupational Illness Compensation Program. 38 C.F.R. § 3.309(d)(3)(i)(D) (2019). The Veteran does not contend that he participated in any of the activities specified as radiation risk activities as defined by 38 C.F.R. § 3.309(d)(3)(ii) (2019). Moreover, service treatment records (STRs) do not show that a DD Form 1141 Record of Occupational Exposure to Ionizing Radiation was created for the Veteran. However, the Veteran does have confirmed service at bases in Texas, New Mexico, and at Clear Air Force in Alaska which was with NORAD. Primarily, he asserts exposure to radiation at that radar site or as a result of his security detail responsibilities. A request was sent to the Department of the Air Force for the Veteran’s radiation dose information in accordance with the requirements under 38 C.F.R. § 3.311(a)(2)(iii) (2019). The Department of the Air Force issued a memorandum in March 2016, noting that they found no external or internal radiation exposure for this Veteran. Moreover, it was noted that with respect 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 (NPRB), is that there were no long-term effects (including cancer) from low-level exposures to radiofrequency radiation (RFR). An extensive epidemiological study of U.S. Navy personnel working with radar systems did not find any adverse health effects that could be attributed to RFR exposure. The Veteran is competent to describe his active service, to include where he was stationed and the duties required by his military occupational specialty (MOS). See Jandreau, 492 F.3d 1372. The Veteran may also be competent to describe information related to him by other individuals who had knowledge of the radiation contamination, but he has not done so. However, his assertion that he was exposed to radiation in service is contradicted by the competent and credible evidence of record. Accordingly, the Board finds that there is no competent evidence establishing that the Veteran was, in fact, exposed to radiation in service; and he does not allege, nor does the evidence reflect that he participated in a radiation risk activity as defined by 38 C.F.R. § 3.309(d) (2019). Added to the record in 2015 were copies of several articles regarding veterans who were exposed during service to radiation and Agent Orange and their ultimate development of cancers, to include multiple myelomas and prostate cancer. However, the articles do not support the contention that the Veteran himself was exposed to radiation or Agent Orange. At the hearing, the Veteran acknowledged that he did not have service in Vietnam or Thailand and that exposure to Agent Orange and/or ionizing radiation was not conceded. The Board acknowledges the Veteran was stationed at the bases as asserted at the 2020 hearing. However, as explained in the Air Force memorandum, they found no external or internal radiation exposure for this Veteran. Therefore, the Board assigns little probative value to the articles submitted by the Veteran because they constitute general information that is already known: i.e., exposure to radiation and Agent Orange can cause cancer, but the articles do not contradict the facts of provided by the service department, which specifically explains that the Veteran received no radiation exposure in conjunction with his service at the facility. Moreover, as already noted, he also had no exposure to Agent Orange. There is no competent evidence otherwise linking the Veteran’s prostate cancer to his active service. The Veteran’s service treatment records are absent of any symptoms of, diagnosis of, or treatment for any prostate condition. The Veteran was initially diagnosed with prostate cancer in 2020, more than 30 years after separating from service, and the evidence does not demonstrate that he experienced a continuity of symptomatology as a chronic disease regarding his prostate cancer. Accordingly, service connection for prostate cancer is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b) (2019); 38 C.F.R. § 3.102 (2019); see also Gilbert, 1 Vet. App. at 53-56. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.