Citation Nr: 21071270 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-39 637 DATE: November 30, 2021 ORDER Entitlement to service connection for rectal retrorectal carcinoma with multiple residuals, as a result of exposure to ionizing radiation, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his rectal retrorectal carcinoma with multiple residuals is at least as likely as not related to his in-service exposure to ionizing radiation. CONCLUSION OF LAW The criteria for entitlement to service connection for rectal retrorectal carcinoma with multiple residuals, to include as due to exposure to ionizing radiation have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from February 1976 to November 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board most recently remanded this issue to the RO for additional development in April 2021. Directives included referring the Veteran's file to the Under Secretary for Benefits should the evidence reflect that the Veteran's radiation dose estimate exceeded zero. Although a September 2021 memorandum determined that the Veteran's dose estimated exceeded zero, the RO did not refer the Veteran's file to the Under Secretary for Benefits. The Board notes that the failure to refer to the Under Secretary is a Stegall violation, in that the Board's prior remand directives were not followed. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order. Moreover, the Court further held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. However, while cognizant of its responsibilities under Stegall, as the Board grants service connection for rectal retrorectal carcinoma with multiple residuals, which is a total grant of benefits as to the issue on appeal, the Board need not further address Stegall compliance at this time. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, 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, there are certain types of cancer that are 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 rectal 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. 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). Diseases specific to radiation-exposed veterans are the following: leukemia (other than chronic lymphocytic leukemia), thyroid cancer, breast cancer, cancer of the pharynx, esophageal cancer, stomach cancer, cancer of the small intestine, pancreatic cancer, multiple myeloma; lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), salivary gland cancer, cancer of the urinary tract, bronchio-alveolar carcinoma, bone cancer, brain cancer, colon cancer, lung cancer, and ovarian cancer. 38 C.F.R. § 3.309(d)(2). Evidence which may be considered in rebuttal of service incurrence of a listed disease listed will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. The expression "affirmative evidence to the contrary" will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. 38 C.F.R. § 3.307(d). 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. In all other claims involving radiation exposure, a request will be made for any available records concerning the veteran's exposure to radiation. These records normally include but may not be limited to the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service treatment records, and other records which may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). Pursuant to 38 C.F.R. § 3.311, "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes the following: all forms of leukemia, except chronic lymphocytic leukemia; thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2)(i)-(xxiv). Section 3.311(b)(5) requires that bone cancer become manifest within 30 years after exposure, posterior subcapsular cataracts become manifest within 6 months or more after exposure, leukemia become manifest at any time after exposure, and that other diseases specified in section 3.311(b)(2) become manifest 5 years or more after exposure. Lastly, and notwithstanding the above, the 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)). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not always accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A review of the record confirms the Veteran's participation in Enewetok Atoll Cleanup Project (EACP) during the period of November 20, 1979 to April 15, 1980; however, the Board notes that EACP during the time period noted does not fall within the meanings of a radiation-risk activity for a grant of presumptive service connection under 38 C.F.R. § 3.309(d). Thus, consideration of this claim on the presumptive basis under 38 C.F.R. § 3.309(d) is not applicable. Nevertheless, the Veteran's diagnosed rectal cancer is considered a radiogenic disease under 38 C.F.R. § 3.311, which 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 the disease is a result of exposure to ionizing radiation in service. Entitlement to service connection for rectal retrorectal carcinoma with multiple residuals, as a result of exposure to ionizing radiation The Veteran contends that his rectal cancer is the result of his exposure to ionizing radiation while participating in the Enewetok Atoll Cleanup Project (EACP) from November 1979 to April 1980. The Veteran explained that during this period, his job was to survey the island where the majority of the nuclear testing explosions occurred to evaluate the levels of radiation present. He obtained readings, recorded them, and submitted them to the nuclear agency for records. These readings were taken from 8AM to 5PM daily and there was no personal protection gear provided. His film badges indicated zero exposure to external gamma (ionizing) radiation but did not measure internal ionizing radiation. The Veteran's service treatment records are silent for any signs, symptoms, complaints of, or symptoms of rectal cancer. However, a May 1980 urinalysis was positive for alpha and beta ionizing radiation which was abundant at the site of his work. The labs resulted with a potassium 40 reading of 610 picocuries per liter, gross Beta reading of 563 picocuries per liter, Plutonium 239 of 0.02 picocuries per 24 hours. See May 1980 service treatment record. In October 1980, he experienced chills, myalgia, arthralgia, weakness, anorexia, headache, fever, and sore throat and sought medical attention. In May 2021, the Veteran submitted an article from the Ruesch Center for the Cure of Gastrointestinal Cancers which stated that scientists believed ionizing radiation caused colon cancer. A September 2021 Memorandum by the Air Force Medical Readiness Agency Office of the Surgeon General stated that the Veteran had the potential to be exposed to ionizing radiation from his duties as a precision measuring equipment specialist. The memorandum stated that the Air Force Safety Center (AFSEC) provided that the Veteran's Deep Dose Equivalent (essentially internal exposure) was estimated to be 0.05 rem. They did not provide an estimate on the Veteran's shallow dose equivalent (external exposure). The memorandum concluded that internal doses due to inhalation were not expected to have an impact on doses to the colon, and therefore an internal dose due to inhalation was also not provided. The agency did not address possible internal exposure from in advertent ingestion of the radioactive materials as is indicated by the presence of isotopes in urine. Although the September 2021 memorandum provided a dose estimate above zero, the RO did not refer the Veteran's file to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311. In September 2021, the Veteran attended a VA examination. The examiner noted the Veteran's diagnosis of colorectal cancer, neuroendocrine carcinoma rectal cancer. The VA examiner opined that it was at least as likely as not that the Veteran's rectal cancer was incurred in or caused by radiation exposure during service. As an initial matter, the examiner explained that the October 1980 chills, myalgia, arthralgia, weakness, anorexia, headache, fever, and sore throat were symptoms of radiation sickness. The examiner explained that about five percent of the energy released in a nuclear air burst is in the form of ionizing radiation: neutrons, gamma rays, alpha particles and electrons moving at speeds up to the speed of light. Gamma rays are high energy electromagnetic radiation; the others are particles that move slower than light. Decaying half-life of residual plutonium from nuclear explosion is 24,000 years, uranium 238 is 700 million years. She noted the May 1980 urinalysis and stated that "Alpha and Beta particles change the DNA through chemical reactions and damage the cells of the rectum which can lead to a mutation into cancer cells." The VA examiner explained that there was sufficient science connecting radiation exposure to rectal cancer, so much so that in February 2019, federal bills in the House and Senate were introduced acknowledging the veterans that served on the EACP and providing them with presumptive service connection for disabilities related to radiation exposure. The examiner stated that, "clearly there is evidence that there is a significant link between the exposure and the development of cancer, and it is currently being reviewed to be voted on." She went on to state that the Veteran supplied numerous medical documents supporting his claim that the exposure he experienced had a connection to his cancer. The examiner stated that the, "connection has been known for many years despite going unacknowledged by the VA and the US government." The Board finds that the positive September 2021 VA medical opinion is probative in value and weighs in favor of the Veteran's claim as a whole. The examiner's opinion is well-reasoned and based on a thorough records review and knowledge of the current relevant medical literature. Thus, the Board finds that the evidence of record is at least in relative equipoise as to whether the Veteran's rectal cancer is related to his in-service radiation exposure. Therefore, the benefit of the doubt rule will be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). As such, service connection for rectal retrorectal carcinoma with multiple residuals is granted. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.