Citation Nr: 21074684 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 12-35 234 DATE: December 16, 2021 ORDER Entitlement to service connection for chronic myeloid leukemia (CML) as due to radiation exposure is denied. FINDINGS OF FACT 1. The evidence of record does not indicate that the Veteran was exposed to ionizing radiation. 2. The Veteran's CML is not related to active-duty service. CONCLUSION OF LAW The criteria for service connection for CML as due to radiation exposure have not been met. 38U.S.C. §§1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from June 1974 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran missed his hearing that was scheduled in November 2021. He has not provided correspondence of good caused for not attending. As such, this matter will be adjudicated without the Veteran having a hearing. A VA examination was not requested to provide direct service etiological opinion, and a lack of such request was not inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Board finds that given the absence of in-service evidence of chronic manifestations of this disorder, and no evidence of this disorder until many years after service, a VA opinion on a direct basis is not warranted for this disorder. 38 C.F.R. § 4.2; cf. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr, 21 Vet. App. 303 (2007). As such, there is no prejudice to the Veteran in proceeding with the adjudication of the claim and the available records and medical evidence are indeed sufficient to make an adequate determination as to this claim. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. 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). Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in effectively two different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 21 (1997). First, service connection may be presumptively established for specific diseases that are manifest in radiation-exposed veterans. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309 (d)(3) as a veteran who, while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. A "radiation-risk activity" includes the onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309 (d)(3)(ii)(A). The term "onsite participation" means presence at the test site, or performance of military duties in connection with ships, aircraft, or other equipment used in direct support of the nuclear test, during the official operational period of an atmospheric nuclear test. 38 C.F.R. § 3.309 (d)(3)(iv)(A). Second, if a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309 (d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309 (d)(2), a veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation, and CML, the Veteran's disorder is specifically listed as not one such disease. 38 C.F.R. § 3.311 (b)(2)(xxiii). Moreover, it is only eligible as such if it becomes manifest five years or more after exposure. 38 C.F.R. § 3.311 (b)(5)(iv). Under the special development procedures in § 3.311(a), 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. 38 C.F.R. § 3.311 (a)(2). In all other claims, 38 C.F.R. § 3.311(a) requires that a request 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 medical 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). When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (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 VA 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 VA Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311 (e) and may request an advisory medical opinion from the VA Under Secretary of Health. 38 C.F.R. § 3.311 (b), (c)(1). After referral, the Under Secretary for Benefits 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 such exposure. 38 C.F.R. § 3.311 (c)(1). 1. Entitlement to service connection for CML, to include as due to radiation exposure In this case, the Veteran is asserting that his CML was caused by ionizing radiation exposure he incurred while working in proximity to nuclear weapons. The Veteran medical records do clearly reflect a diagnosis of CML in approximately 2006. As an initial matter, there is no evidence, and the Veteran has not asserted, that he was involved in a "radiation risk activity" such as the participation in an atmospheric detonation of a nuclear device or any other such activity. As such, service connection on a presumptive basis under 38 C.F.R. § 3.309 is not warranted. Indeed, the Veteran has not asserted that he participated in any such exercise. Next, while the Veteran has been diagnosed with a type of leukemia, CML is specifically removed from the definition of "radiogenic disease," therefore the evidence of actual radiation exposure is insufficient to pursue development under 38 C.F.R. § 3.311. As such, the first question is whether the evidence reflects that the Veteran was actually exposed to ionizing radiation. After a review of the evidence of record, the Board concludes that the Veteran was not exposed to ionizing radiation. Specifically, in a March 2010 letter, the U.S. Air Force responded that the Veteran has no record of ionizing exposure. Moreover, the Air Force also stated that, based on a review of the Veteran's personnel records, there was "no evidence of duties that would have involved working directly with nuclear weapons systems or components." In making this decision, the Board understands the Veteran's statements that he was on the flight line at Minot Air Force Base, where nuclear weapons were in the vicinity. However, without any other supporting evidence, there is no way to determine that nuclear weapons were actually there, and to what extent there would have been any ionizing radiation exposure resulting from the mere presence of these weapons. Given the Air Force's determination that it would not be normal for the Veteran to have been exposed, the Board can only conclude that there was no exposure to ionizing radiation. To the extent the record contains statements from medical professionals who may have opined that the Veteran's CML is related to his radiation exposure, these opinions have no probative value, as the Board is unable to acknowledge that the Veteran was ever exposed to ionizing radiation. Therefore, service connection is also not warranted based on ionizing radiation exposure under 38 C.F.R. § 3.311. Finally, although service connection cannot be established based on either 38 C.F.R. § 3.309 or 3.311, it can nonetheless be established under 38 C.F.R. § 3.303 (d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for the Veteran's CML is not warranted including based upon direct service connection. The Veteran has provided no proof other than lay statements that he has been exposed to radiation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). As an initial matter, the Board concludes that the Veteran has a current diagnosis of CML, but the preponderance of evidence is against finding that the disorder began during active service and/or is otherwise related to an in-service injury, event, or disease, to include as secondary to radiation exposure. He was first diagnosed in approximately in 2006. 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), 3.304, 3.307, 3.309. The Board notes that this is approximately 30 years after he left service. Moreover, while the Veteran did state that he experienced other symptoms that he attributes to radiation exposure in these years, he has not asserted that he has experienced cancer since he left service. Therefore, continuity of symptoms has not been shown. Moreover, the evidence does not reflect, and no treating professional has otherwise opined, that the Veteran's CML is related to his service. Indeed, the Veteran has not asserted any relationship outside of his claimed ionizing radiation exposure. Again, the Board recognizes the statements from the Veteran, regarding the relationship between his CML and active service. Specifically, the Veteran asserts that this condition occurred during service and is due to his exposure to radiation from nuclear weapons. Nevertheless, while he is competent to provide testimony regarding observable symptomatology, they are not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran's CML are found to lack competency. Therefore, the appeal is denied. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Billinger, Associate Counsel