Citation Nr: 21063764 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-24 538 DATE: October 15, 2021 ORDER Entitlement to service connection for prostate cancer due to radiation exposure is denied. FINDING OF FACT There is insufficient competent evidence of record to establish that the Veteran's prostate cancer is etiologically related to his radiation exposure in service. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1960 to July 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Board remanded the matter for a medical opinion and advisory decision opinion by the VA Under Secretary for Benefits. As both of these developments have been completed, the Board may now adjudicate the claim on the merits. See Dyment v. West, 13 Vet. App. 141, 14647 (1999). The Veteran seeks service connection for his diagnosed prostate cancer, which he contends is due to his confirmed exposure to radiation while participating in Operation DOMINIC I atmospheric nuclear tests. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Though service connection is presumed for any disability in 38 C.F.R. § 3.309(d)(2) that a radiation-exposed veteran develops following service, prostate cancer is not included in that list. See 38 C.F.R. § 3.309. Likewise, though prostate cancer is a "radiogenic disease" under 38 C.F.R. § 3.311(b)(2)(xxiii) and therefore a disability for which consideration by the Under Secretary of Benefits is required where a veteran was exposed to radiation, in this case the Under Secretary of Benefits issued an April 2021 advising that the evidence does not support that the Veteran's prostate cancer is related to his in-service radiation exposure. See 38 C.F.R. § 3.311. Thus, entitlement to service connection in this case is warranted only if there is competent evidence establishing a direct medical connection between the Veteran's prostate cancer and his exposure to radiation during service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. After reviewing all of the evidence of record, the Board finds that unfortunately the evidence is insufficient to establish that the Veteran's prostate cancer is connected to his in-service radiation exposure. A 2016 letter from the Defense Threat Reduction Agency confirmed the Veteran's participation in Operation DOMINIC I and provided the maximum radiation doses to which the Veteran could have been exposed. As recounted by the Veteran, he was on the flight deck during one detonation, as well as physically pushed into storage helicopters that had made hundreds of trips retrieving scientific testing devices near the epicenter. He was also below the ship's deck on the occasion of another nuclear test. Private treatment records show that in November 2011 a biopsy of the prostate was positive for adenocarcinoma. Given the Veteran's diagnosed prostate cancer and in-service radiation exposure, an opinion was obtained in order to provide medical evidence to address a potential relation. In March 2021, a clinician reviewed the Veteran's radiation exposure during service, searched the medical literature, and opined that ultimately "there is no evidence in the current, widely accepted, peer-reviewed literature suggesting radiation exposure of the type encountered by the Veteran causes prostate cancer." The Board finds that this is the most probative competent evidence regarding a connection between the Veteran's prostate cancer and service. Though the Board acknowledges the Veteran's firm belief that because he was so directly exposed to radiation his prostate cancer is related to those events; however, there has been no evidence submitted that the Veteran has the education, training, or experience to opine this question of etiology, which is a medically complex issue beyond observation by the senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board acknowledges the Veteran's disappointment with a lengthy appellate process ultimately leading to a negative outcome. In rendering its decisions, the Board is bound to apply the law based on the facts present in the record, and here there is an absence of competent medical evidence sufficient to support a finding that the Veteran's prostate cancer is due to his in-service radiation exposure. (Continued on the next page) Unfortunately, without sufficient evidence of a connection to service, the applicable law prevents the Board from granting entitlement to service connection. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, Associate 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.