Citation Nr: 21005083 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 10-08 322A DATE: January 28, 2021 ORDER Entitlement to service connection for colorectal cancer is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s colorectal cancer was due to a disease or injury in service, to include exposure to ionizing radiation. CONCLUSION OF LAW The criteria for entitlement to service connection for colorectal cancer have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1971 to February 1974. He died in September 2010. The appellant, his surviving spouse, is recognized as the appellant in this case. 38 U.S.C. § 5121A. In June 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In June 2014, the Board denied the above claim. The appellant subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2015 Order, the Court granted a Joint Motion for Remand (JMR) which vacated the June 2014 Board decision and remanded the matter for readjudication consistent with the motion. The appeal was most recently before the Board in August 2020 when it was remanded for additional development. There has been substantial compliance with the remand in connection with claim decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for colorectal cancer During his lifetime, the Veteran stated that while stationed in Germany, he traveled throughout European countries disposing and checking atomic munitions. He claimed that these activities exposed him to radiation which caused his colorectal cancer. See, e.g., April 2009 Radiation Dose Assessment Questionnaire. Statements provided by both the Veteran and a fellow service member, D.M., indicated that they wore dosimeters that changed colors when exposed to radiation during the course of their duties inspecting weapons. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had been diagnosed with both rectal and colon cancer prior to his death, and evidence shows that the Veteran was exposed to ionizing radiation in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosed cancers began during service or were otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Entitlement to an award of service connection for a disability that is claimed to have resulted from a veteran’s in-service exposure to ionizing radiation may be established by three distinct means. See Ramey v. Brown, 9 Vet. App. 40 (1996), aff’d sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997). First, a radiation-exposed Veteran may be presumptively service-connected for any of the specific diseases listed in 38 C.F.R. § 3.309 (d), which encompass a variety of different forms of cancer. Id. If the requirements for presumptive service connection under 38 C.F.R. § 3.309 (d)(3) (which defines “radiation-exposed veteran”) are not met, service connection may also be established if the evidence shows the existence of any other “radiogenic” diseases, such as any form of cancer listed under 38 C.F.R. § 3.311 (b)(2) or other claimed diseases considered to be radiogenic through a showing of competent scientific or medical evidence. 38 C.F.R. § 3.311 (b)(4). Finally, direct service connection may be established by demonstrating that the disease or malady was incurred during, or aggravated by, service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When it has been determined that: (1) a Veteran has been exposed to ionizing radiation; (2) the Veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311 (c). When such a claim is forwarded for review, the Under Secretary for benefits shall consider with reference to 38 C.F.R. § 3.311 (e) and may request an advisory opinion from the Under Secretary for Health. 38 C.F.R. § 3.311 (b), (c)(1). The medical advisor must determine whether sound scientific and medical evidence supports a conclusion that it is “at least as likely as not” that the disease resulted from in service radiation exposure or whether there is “no reasonable possibility” that the disease resulted from in service radiation exposure. 38 C.F.R. § 3.311 (c)(1). Turning to the evidence of record, the Veteran’s service treatment records do not reveal any complaint, treatment, or a diagnosis of either colon or rectal cancer. Post-service medical records show the Veteran was diagnosed with adenocarcinoma of the rectum in December 2007. A December 2008 operative report shows the Veteran was subsequently diagnosed with colon cancer. The Board has remanded this matter multiple times – most recently in August 2020 – to obtain a radiation dose estimate pursuant to VA regulations and a medical opinion addressing the Veteran’s assertion that his cancer was caused by in-service radiation exposure. In an October 2020 advisory medical opinion, the Director of the Post-9/11 Environmental Health Program (9/11 Director) concluded, following a review of the record, that it was not likely that the Veteran’s colorectal cancer was caused by exposure to ionizing radiation while in military service. The opinion noted the Veteran’s contention that he developed colorectal cancer due to exposure to ionizing radiation from his active duty service from 1971 to 1974 resulting from his military duties checking and disposing atomic munitions as an atomic demolition munitions specialist during foreign service in Germany. The October 2020 opinion noted that the Veteran’s service treatment records and personnel records did not contain evidence of monitoring for occupational exposure to ionizing radiation. Reports from the Army Dosimetry Center dated in May 2009, January 2012, and August 2016 stated that no records of exposure to occupational radiation could be found for the Veteran. Further, in October 2016, the Defense Threat Reduction Agency stated that the Veteran’s service records were reviewed, and there was no indication he participated in U.S. underground nuclear weapons tests. The October 2020 opinion explained that in forming a medical opinion, the Veteran’s entire record was reviewed. The Interactive RadioEpidemiological Program (IREP) was designed to consider the dose estimate, which was formulated using intrinsic radiation (INRAD) data – i.e., the types, rate and duration of the radiation – relative sensitivity of exposed body tissues, gender, age at the time of exposure, and time-lapse between onset of disease and exposure to the radiation. The Veteran’s family history is not considered in this determination since a positive family history for cancer would not assist in providing the Veteran a favorable determination, while a negative family history only shows that there is no immediately identifiable genetic link to the disease. Any post-service radiation exposure would be relevant in assessing the Veteran’s probability of causation, although in this case the opinion stated there was no record of post-service radiation exposure or exposure to other carcinogens. In explaining how the use of INRAD to determine the Veteran’s in-service radiation exposure and IREP to determine the probability of causation was appropriate per VA regulations (as requested in prior Board remands), the October 2020 opinion stated that the radiation dose is the prime factor to consider when determining the causation of the disease. Where a regulatory presumption of service connection does not exist under 38 C.F.R. § 3.309 (d), exposure to radiation alone is not the cause of the disease. Rather, the dose must be determined through direct measurement or reconstruction methodology. Once the dose is determined, the issue of disease causation can be addressed. In the Veteran’s case, there was no dose estimate provided by the Army. The 9/11 Director stated that his office has seen INRAD data used previously by the Army Public Health Command on similar claims. The INRAD data was derived using actual radiation measurements. In this case, the 9/11 Director stated that his office chose the data for “direct weapons workers” which results in the highest possible dose estimate to the Veteran. Based on a review of the job history, records provided, and INRAD reports, the 9/11 Director stated that it was unlikely that the Veteran received a radiation dose exceeding 5 rem/year. Therefore, for four years of work in the vicinity of nuclear weapons, the Veteran’s radiation dose would not exceed a total effective dose equivalent of 20 rem. The IREP, and the new dose of 20 rem (double the previous 10 rem dose estimate provided in a January 2018 advisory medical opinion) was used to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran’s cancer. The program calculated a 99th percentile value for the probability of causation of 27.41 percent for colon cancer and 12.23 percent for rectal cancer. The combined total probability of causation was calculated to be 36.29 percent. In an October 2020 statement, the Compensation Service Director provided an opinion restating the findings of the October 2020 advisory medical opinion and concluding that it was not likely that the Veteran’s colorectal cancer was caused by exposure to ionizing radiation while in military service. The Board concludes following a review of the record that entitlement to service connection for colorectal cancer is not warranted on a presumptive basis as the Veteran is not a “radiation-exposed veteran” as defined by 38 C.F.R. § 3.309 (d)(3). Under the second basis, service connection may be granted where there is exposure to ionizing radiation and the subsequent development of a radiogenic disease within a specified time period. 38 C.F.R. § 3.311 (b). Colon cancer is a radiogenic disease. See 38 C.F.R. § 3.311 (b)(2)(x). Furthermore, the Veteran’s cancer manifested five years or more after exposure, therefore meeting the regulatory time requirements. 38 C.F.R. § 3.311 (b)(5). Because the Veteran was diagnosed with a radiogenic disease that manifested five or more years after exposure, the Agency of Original Jurisdiction (AOJ) undertook special development outlined in 38 C.F.R. § 3.311, including requesting any available records concerning the Veteran’s exposure to radiation and obtaining a dose estimate from the Under Secretary for Health. 38 C.F.R. § 3.311 (a)(2)(iii). In a letter received on January 2013, the U.S. Army Dosimeter Center indicated that it researched the files for records of the Veteran’s exposure to ionizing radiation but was unable to locate any records for him. The claims file does not include a Record of Occupational Exposure to Ionizing Radiation (DD Form 1141). Service treatment records do not reveal any complaint, diagnosis, or treatment for either colon or rectal cancer. Post-service treatment records show a diagnosis for adenocarcinoma of the rectum in December 2007, approximately 33 years after separation from service. As detailed above, a dose estimate and opinion were provided in October 2020 by the VA Director of the Post-9/11 Environmental Health Program. In providing the estimate, the Director relied upon exposure levels of direct weapons workers, stating that this military occupation afforded the Veteran the highest possible dose estimate in calculating the likelihood of causation. The amount of exposure to radiation was then extrapolated based upon an estimate of four years of exposure – which the Board notes is longer than the Veteran’s actual period of active duty service. Based upon the dose estimate, the VA expert rendered the opinion that the it was unlikely that the Veteran’s colorectal cancer can be attributed to radiation exposure in military service. The Board notes that the Veteran’s private physician has provided positive etiology opinions which address a link between the Veteran’s colorectal cancer and exposure to radiation in service. See Letters from Dr. F. dated January 2009, October 2009, and March 2010. Dr. F. stated that the Veteran’s “proximity to radioactive material handled during his military career is probably connected to his development of cancer which is most likely terminal.” The Board affords little probative value to Dr. F.’s opinions because they are based on a history of radiation exposure in service given by the Veteran, without consideration of a radiation dose estimate. Conversely, the Board affords a higher probative value to the October 2020 opinion from the 9/11 Director because it takes into account a radiation dose estimate based on factors most favorable to the Veteran and renders a scientific opinion taking into consideration that value and the applicable scientific studies. The October 2020 opinion explained the methodology for determining the radiation dose estimate and likelihood of causation, explained why this methodology was appropriate per VA regulations, and applied the methodology to the specific facts of this case. The Board thus affords the October 2020 advisory medical opinion from the 9/11 Director greater probative value. The Board has considered the assertions of the Veteran and the Appellant, which purport to link the Veteran’s colorectal cancer with ionizing radiation in service. The Board has also specifically considered lay evidence – pursuant to the March 2015 JMR – from both the Veteran and his fellow serviceman that they wore dosimeters that changed colors when exposed to radiation. The Veteran, the Appellant and the service member writing in support of the claim are competent to testify as to their observations, but they have not demonstrated that they are experts on the diagnosis or etiology of cancer. Unlike disorders that may be observable as to both their incurrence and their cause, such as a dislocated shoulder, the cause of cancer is not readily apparent to lay observation. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428 (2011). Stated more plainly, lay statements made by the Veteran and his fellow serviceman that they were monitored for radiation exposure during service are irrelevant to the outcome of this appeal. The critical issue in this case not whether or not the Veteran was exposed to radiation in service – which the March 2015 JMR seems to vaguely suggest. Rather, the determinative factor lies in whether the estimated amount of radiation exposure during active service (i.e., the radiation dose) is sufficient to warrant a positive nexus linking the Veteran’s conceded in-service ionizing radiation exposure to his cancer diagnoses decades after separation. Indeed, the evidence establishes and the Board concedes that the Veteran was likely exposed to in-service ionizing radiation for which he was monitored. Unfortunately, the Veteran’s service records are silent on just how much radiation exposure the Veteran suffered. The answer to this question is a complex medical determination for which neither the Veteran, nor the Appellant, nor the fellow servicemember cited in the record have been shown to be competent to comment upon. As such, their statements in this regard hold no probative weight. The Board is left to weigh the probative value of the October 2020 advisory medical opinion against the opinions provided by the Veteran’s private medical provider. As stated above, the Board assigns more probative value to the October 2020 opinion. Accordingly, the preponderance of the evidence is against a finding that the Veteran is entitled to service connection under § 3.311, based on a radiogenic condition. Finally, under the third basis, the Veteran is not entitled to service connection on a direct basis, on a presumptive basis of cancer manifesting within one year of service, or on the basis of continuity of symptomatology. As explained above, the Veteran’s service treatment records do not show treatment or a diagnosis of either colon or rectal cancer. The post-service medical evidence reveals a rectal cancer diagnosis in December 2007 and a diagnosis for colon cancer one year later. There is no assertion that the cancer began during service and the only argument provided by the Veteran or the Appellant has been that the Veteran’s cancer was related to in-service exposure to ionizing radiation. As detailed above, the probative evidence is against that part of the claim. There is no other evidence on direct service connection. Thus, the preponderance of the evidence weighs against a finding of a nexus between the Veteran’s colorectal cancer and service. For the foregoing reasons, the preponderance of the evidence weighs against a finding that the Veteran’s colorectal cancer is related to service on any basis, including due to exposure to ionizing radiation. There is no doubt to be resolved. The claim is denied. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.