Citation Nr: 21072185 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 15-37 969A DATE: December 2, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) claimed as obstructive disease of airways is remanded. Entitlement to service connection for kidney cancer is remanded. Entitlement to service connection for chronic lymphocytic leukemia (CLL) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1966 to February 1970. This matter is on appeal from an April 2012 rating decision. The Veteran passed away in December 2015. The Appellant is the Veteran's surviving spouse who has been recognized as the substitute by VA. See May 2020 Correspondence. As a preliminary matter, the Board notes that based on a February 2021 Statement in Support of Claim, the Appellant did not wish to be represented. Therefore, the Ocean County Veterans Service Bureau is no longer the representative on file. The Board also notes that in the October 2015 VA Form 9, a videoconference was requested. However, in October 2021, the Appellant returned a VA Notification Letter that was originally sent to her in September 2021, in which she circled the phrase, 'You could also withdraw your hearing request and allow the judge to decide your appeal based on the information already in your file.' See October 2021 Notification Letter VA 20-8993. The Board thus, finds that the Appellant has sufficiently withdrawn her previous request for a hearing and wishes for her claim to be adjudicated by the Board. The matters are remanded for additional development. Chronic obstructive pulmonary disease (claimed as obstructive disease of airways) due to asbestos is remanded. The Veteran contended that he developed chronic obstructive pulmonary disease due to his exposure to asbestos during his active duty. The Veteran's DD Form 214 notes his occupational specialty during service as marine mechanic. As noted in the October 2015 Statement of the Case, VA has conceded a certain level of asbestos exposure based upon the Veteran's occupational specialty. In support, the Appellant submitted a February 2013 statement, indicating that upon his return from service on the USS Triton, the Veteran became ill. After being diagnosed with COPD, he struggled to even go up and down stairs. A review of his service treatment records do not reveal any documentation of symptoms indicative of COPD. In October 1969, the Veteran was seen for a cough, which was related to a fever. He was treated with medication with no subsequent complaints of chronic coughing. His separation examination in January 1970 did not note any clinical abnormalities relating to his lungs. Post service CT chest scans in May 2010 revealed an abnormal result. There were some focal areas of pleural thickening on the left side, likely postinflammatory in etiology. The bronchial wall thickening suggests bronchitis and mild right lower lobe bronchiectasis. Another private evaluation from the New York University Medical Center identified COPD as a respiratory diagnosis. The Veteran was afforded a VA examination in February 2012. There, the examiner noted asbestos exposure. However, a specific diagnosis was not offered. The examiner did not diagnose the Veteran with any interstitial lung disease or any specific restrictive lung disease. He did not require any parenteral corticosteroid or inhaled medications. There was no evidence of asthma, bronchiectasis, sarcoidosis, incapacitating episodes, bacterial or mycotic lung disease. A computed tomography in May 2010 revealed no parenchymal. The Veteran reported that he was exposed to asbestos while working aboard the submarines USS Triton and USS Columbus as a maintenance repairman. He denied any respiratory complaints during service and admitted to being a cigarette smoker, but that he stopped 5 years ago. He described intermittent shortness of breath occurring with exertion. In support of his claim, the Veteran submitted a February 2013 private medical opinion from Dr. C.P., who concluded that it is more likely than not that the Veteran's COPD was due to exposure while onboard the USS Triton between 1966 to 1969. The Board notes, however, that the physician did not offer any rationale to support his conclusion. Dr. C.P. submitted a new opinion in April 2014, which offered the same conclusion but with no additional rationale. VA obtained a medical opinion in August 2014. The examiner noted that the Veteran had been diagnosed with COPD and neoplasm or metastases of the lungs. The Veteran reiterated that he was exposed to asbestos while working aboard the USS Triton and USS Columbus as a machinist maid. He denied any respiratory issues in service. He admitted to smoking but that he quit approximately 7 years earlier. Upon examination, it was noted that the Veteran required chronic low dose corticosteroids and inhalation bronchodilator therapy. It was noted that his COPD was the condition predominantly responsible for limitation in pulmonary function. The examiner concluded that the Veteran's lung cancer is less likely caused by his exposure to asbestos during service. The examiner noted the Veteran had a significant history of smoking, which is a major risk for non-small lung cancer. Asbestos primarily causes mesothelioma, which the Veteran was not diagnosed with. No opinion was offered on the etiology of the Veteran's COPD. The Veteran submitted an internet article on Navy Veterans, which noted that naval ships have high levels of toxic asbestos, a substance that causes mesothelioma or other asbestos-related illness. See June 2015 Web/HTML Documents. The Board finds that a remand is warranted as the record does not contain an adequate medical opinion. The August 2014 VA examination report only addressed the Veteran's lung cancer and did not offer an opinion on whether the Veteran's COPD was caused by his service. While the Veteran and the Appellant submitted a positive private opinions from Dr. C.P. dating February 2013 and April 2014, the conclusions were unsupported by any explanation. Therefore, a remand is necessary to obtain a medical opinion regarding the Veteran's COPD. Kidney Cancer The Veteran contended that he developed kidney cancer as a result of his service, to include exposure to radiation. Based on his Radiation Risk Activity Worksheet, he indicated that he served on the USS Triton in 1969 to 1970 as a mechanic in the engine repairment unit. He asserted prolonged exposures as he was confined to the submarine. He indicated that slept about 100 feet away from dual nuclear reactors. See April 2013 Radiation Risk Activity Worksheet. The term "radiation-exposed veteran" means a veteran who participated in a radiation-risk activity. 38 C.F.R. § 3.309 (d)(3)(i). This has not been shown. The Veteran's DD-214 showed that he was a marine mechanic on the USS Columbus and a Machinist Mate on USS Triton. A June 2014 Naval Dosimetry Center report provided the Veteran's history of service-incurred occupational exposure to ionizing radiation and showed that between January 1967 and May 1969, his exposure to SDE WB was 00.00, DDE-Photon was 00.111, and DDE-Neutron was 00.000. Kidney cancer is not among the diseases specific to radiation-exposed veterans and is not listed under 38 C.F.R. § 3.309 (d). Additionally, the probative evidence of record does not show that the Veteran participated in a radiation-risk activity as specified by VA regulations during his period of active service. As a result, service connection on a presumptive basis as due to a disease specific to radiation-exposed veterans is not available in this case. However, kidney cancer qualifies as a "radiogenic disease," and as such, the Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311. Under the special development procedures in 38 C.F.R. § 3.311(a)(2), dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. For all other claims, 38 C.F.R. § 3.311(a) requires that a request is made for any available records, including Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), service treatment records, and other records containing information pertaining to the veteran's radiation dose in service. The records will be forwarded to the VA 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). First, there is no argument as to whether the Veteran currently had a diagnosis of renal cell carcinoma. The record clearly indicates that the Veteran was diagnosed with renal cancer in 2010. In support of his claim, the Veteran's private physician, Dr. M.S. from the New York University Urology Associates issued an April 2014 opinion indicating that the Veteran's kidney cancer is due to his exposure to radiation in service. The Veteran's service treatment records are silent for any signs, symptoms, complaints of, or symptoms of kidney cancer. Due to the conceded radiation exposure, VA obtained an advisory opinion in accordance with 38 C.F.R. § 3.311(c) from the Director of Compensation Service regarding the relationship of radiation exposure and diagnosis of renal cell carcinoma. In December 2014, the Director of Compensation Service reported that based on the evidence of record, it is unlikely that the Veteran's kidney cancer resulted from his exposure to ionizing radiation in service. The Under Secretary for Health cited to the Health Physics Society, position statement PS010-2, Radiation Risk in Perspective, revised in 2010, which indicated that "in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against quantitative estimation of health risks below an individual dose of 5 rem in one year or a lifetime dose of 10 rem above that received from natural sources." The position statement added that "there is substantial and convincing scientific evidence of health risks following high-dose exposures. However, below 5 to 10 rem (which includes occupational and environmental exposures), risks of health effects are either too small to be observed or are nonexistent." Thus, there is no reasonable possibility that the Veteran's kidney cancer resulted from radiation exposure in service. The Board finds that the record contains a negative opinion which indicates that the Veteran's radiation exposure in service unlikely caused his kidney cancer. It also contains a private medical opinion which offered a positive nexus between the Veteran's kidney cancer and radiation exposure in service. However, the April 2014 private opinion did not offer any rationale to support its conclusion. The Board notes that notwithstanding the provisions of 38 C.F.R. §§ 3.309 and 3.311, the Veteran may establish entitlement to service connection on a direct basis pursuant to 38 C.F.R. § 3.303(d). See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Therefore, the matter is remanded so that a new medical opinion may be obtained regarding the etiology of the Veteran's kidney condition. Chronic lymphocytic leukemia It was the Veteran's contention that he developed chronic lymphocytic leukemia as a result of his exposure to radiation during his service on the USS Triton and USS Columbus. Based on his April 2014 Radiation Risk Activity Worksheet, he served on the USS Triton in 1969 to 1970 as a mechanic in the engine repairment unit. He indicated that he slept about 100 feet away from dual nuclear reactors. The Veteran's medical records clearly indicate that he has been diagnosed with chronic lymphocytic leukemia. However, leukemia is not a radiogenic disease. Regardless, the Veteran and the Appellant are not precluded from pursuing a claim under the theory of direct service connection. The Veteran's service treatment records are silent for any signs, symptoms, complaints of, or symptoms of leukemia. His DD-214 showed that he was a marine mechanic on the USS Columbus and a Machinist Mate on USS Triton. A June 2014 Naval Dosimetry Center report provided the Veteran's history of service-incurred occupational exposure to ionizing radiation and showed that between January 1967 and May 1969, his exposure to SDE WB was 00.00, DDE-Photon was 00.111, and DDE-Neutron was 00.000. In support of his claim, the Veteran submitted an article on the USS Triton (SSN 586), which noted that its propulsion system included two nuclear reactions, a unique feature in US submarine construction. It was built and commissioned as a nuclear-powered radar picket submarine and was decommissioned in May 1960. He also submitted an internet article titled 'NIOSH Multi-Site Leukemia Study,' which suggested that the chronic lymphocytic leukemia may be caused by ionizing radiation. The Veteran also submitted a positive nexus opinion from his private physician, Dr. M.P., who opined that the Veteran's leukemia was caused by his exposure while aboard the USS Triton. See May 2014 Medical Treatment Record-Non-Government Facility; see also April 2016 Medical Treatment Record-Non-Government Facility. A July 2014 Advisory Opinion issued by the Direct of Compensation Service found that the Veteran's radiation dose did not exceed 5 rem in one year or 10 rem in a lifetime. Therefore, it is unlikely that the Veteran's leukemia is caused by his radiation exposure while in service. Based on the Health Physics Society, in their position statement PS010-2, Radiation Risk in Perspective, revised in 2010, indicated that "in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against quantitative estimation of health risks below an individual dose of 5 rem in one year or a lifetime dose of 10 rem above that received from natural sources." It added that "there is substantial and convincing scientific evidence of health risks following high-dose exposures. However, below 5 to 10 rem (which includes occupational and environmental exposures), risks of health effects are either too small to be observed or are nonexistent. Thus, there is no reasonable possibility that the Veteran's leukemia or meningioma resulted from radiation exposure in service. See July 2014 Correspondence. The Board notes that in an October 2014 correspondence, the Veteran expressed disappointment in not receiving a VA examination for his leukemia and that he was only evaluated for his COPD. In reviewing the overall record, the Board finds that the record consists of both positive and negative evidence. The Director of Compensation Services found that the Veteran's limited exposure to radiation in service did not cause his leukemia. In contrast, the Veteran's private physician found a positive nexus between his leukemia and service on the USS Triton. However, the private physician failed to provide adequate reasoning in support of his conclusion. Therefore, a remand is warranted to obtain a medical opinion to determine the etiology of the Veteran's chronic lymphocytic leukemia. The matters are REMANDED for the following action: 1. Obtain a medical opinion regarding the etiology of the Veteran's COPD. In doing so, the examiner is asked to determine: a. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's COPD is caused by his military service, to include his exposure to asbestos? Why or why not? In doing so, the examiner is asked to consider and address the following: (i.) The Veteran's service aboard the USS Triton and USS Columbus; 2) The Veteran's diagnosis of COPD 3) Private opinions dating February 2013 and April 2014 from Dr. C.P.; 4) Internet article submitted by the Appellant in June 2015. (ii.) The Appellant's statements that the Veteran only smoked periodically and quit several times; and had stopped smoking altogether in 2004, without smoking a cigarette since that time. See Appellant's October 2014 statement. 2. Obtain a medical opinion regarding the etiology of the Veteran's kidney cancer. In doing so, the examiner is asked to determine: a. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's kidney cancer is caused by his military service, to include his radiation exposure? Why or why not? In rendering his or her opinion, the examiner is asked to consider and address the following: (i.) The Veteran's service aboard the USS Triton and USS Columbus;2) Radiation Risk Activity Worksheet 3) May 2014 and April 2016 Private medical opinions from Dr. M.P. 4) 2014 Advisory Opinion from the Director of Compensation Services. 3. Obtain a medical opinion regarding the etiology of the Veteran's leukemia. In doing so, the examiner is asked to determine: a. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's leukemia is caused by his military service, to include his radiation exposure? Why or why not? In doing so, the examiner is asked to consider and address the following: 1) The Veteran's service aboard the USS Triton and USS Columbus;2) Radiation Risk Activity Worksheet 3) April 2014 and April 2016 Private medical opinion from Dr. M.P. 4) 2014 Advisory Opinion from the Director of Compensation Services 5) Internet article titled, 'NIOSH Multi-Site Leukemia Study. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Yeh, 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.