Citation Nr: 21075883 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-53 940 DATE: December 21, 2021 ORDER Entitlement to service connection for rectal cancer, to include as due to exposure to ionizing radiation, is denied. FINDING OF FACT The Veteran's rectal cancer did not have its onset during active service, and is not related to an in-service injury, disease, or event, to include exposure to ionizing radiation. CONCLUSION OF LAW The criteria for service connection for rectal cancer have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.303, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1982 to July 1985 and from September 1985 to May 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. At the hearing, the Veteran and his representative requested that the record be held open for 60 days for the submission of additional evidence. The Board also observes that during the hearing, the Veteran testified that he also used asbestos but does not believe that caused his cancer, he believes it was the radiation. The Board has reviewed the claims file and finds no need to remand for further development for asbestos exposure or to obtain a VA medical opinion as to whether asbestos exposure is related to the development of rectal cancer. Indeed, there is nothing in the Veteran's file that suggests a relationship between asbestos exposure and the development of rectal cancer. For example, the Veteran has not indicated in any statements that his rectal cancer is due to asbestos exposure. He has not submitted any medical evidence, to include any articles to suggest a relationship between asbestos exposure and the development of rectal cancer. Further, as noted, the Veteran just reported during the hearing that he used asbestos but did not claim such is due to his development of rectal cancer. Accordingly, as previously stated, the Board finds that referral for a VA medical opinion is not warranted. See DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Service connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for a disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by several different methods. 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, when a "radiogenic disease" first becomes manifest after service, and it is contended that the disease resulted from exposure to ionizing radiation during service, various development procedures must be undertaken in order to establish whether or not the disease developed as a result of exposure to ionizing radiation. 38 C.F.R. § 3.311(a)(1). Third, even if the claimed disability is not listed as a presumptive disease under 38 C.F.R. § 3.309(d) or as a radiogenic disease under 38 C.F.R. § 3.311, service connection must still be considered under 38 C.F.R. § 3.303(d) in order to determine whether the disease diagnosed after discharge was incurred during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Service connection for rectal cancer, to include as due to exposure to ionizing radiation The Veteran was diagnosed with rectal cancer in 2013. Rectal cancer is not one of the diseases presumptively associated with radiation-exposed veterans. 38 C.F.R. § 3.309(d). Therefore, the Veteran is not entitled to presumptive service connection based on radiation exposure. Id. Nevertheless, rectal cancer qualifies as a "radiogenic disease" as defined in 38 C.F.R. § 3.311(b)(2). The provisions of 38 C.F.R. § 3.311 provide for development of claims based upon a contention of radiation exposure during active service and post-service development of a radiogenic disease. The purpose of these provisions is to relieve claimants of the burden of having to submit evidence to show that their disease may have been induced by radiation. These provisions do not give rise to a presumption of service connection, but rather establish a procedure for handling claims brought by radiation exposed veterans or their survivors. See Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997). The governing regulation essentially states that, in all claims in which it is established that a radiogenic disease first became manifest after service, and it is contended that the disease resulted from radiation exposure, a dose assessment will be made. In addition, the regulation states that if a veteran was exposed in service to ionizing radiation and, after service, developed one of the specifically enumerated radiogenic diseases stated above, his claim is then referred to the Under Secretary for Benefits who must determine, based on the extent of the exposure, whether there is a reasonable possibility that the disease was incurred in service. The Under Secretary for Benefits may request an advisory opinion from the Under Secretary of Health. The Under Secretary for Benefits shall render an opinion stating whether it is as least as likely as not that the Veteran's disease resulted from exposure to ionizing radiation in service based upon sound scientific and medical evidence supporting the conclusion, or that there is no reasonable possibility that the veteran's disease resulted from radiation exposure. 38 C.F.R. § 3.311(c). In a December 2013 statement, J.D.M, MD, Radiation Oncologist from David Grant Medical Center (DGMC) radiation therapy clinic stated that the Veteran is a patient being treated with chemotherapy and radiation therapy for squamous cell carcinoma of the anal canal. He noted that while the Veteran was on active duty in the Navy, he worked with the Mark 116 ASROC Weapons System that delivered the W44 ASROC nuclear depth charge. The Veteran reported that the nuclear warhead had no radiation shielding and he was therefore exposed to a significant amount of radiation. Dr. J.D.M. stated that although there is no way to prove the cause of the cancer, the Veteran has none of the classic risk factors for anal cancer including prior HPV infection/genital or anal warts, HIV infection, or a history of anal receptive intercourse. Therefore, he concluded, it is reasonable to think that the Veteran's cancer may have been caused by radiation exposure, as it is known that a history of exposure to ionizing radiation can place a person at risk for any solid malignancy. The examiner again indicated that the Veteran's exposure to radiation while serving in the Navy more likely than not contributed to his current disability. During a February 2014 VA visit, the examiner noted the Veteran continues to smoke 2 packs per day and he has a 16-pack-year smoking history. He has a remote history of methamphetamine use but did not use any IV drugs currently. A February 2015 correspondence from the U.S. Department of the Navy documents the Veteran's dose estimate from October 1983 to May 1984: DDE-Photon is 00.012 and DDE-Neutron is 00.048. Memorandum dated April 1, 2015 from Director, Post-9/11 Environmental Health Program, reviewed and considered the evidence of record. He noted that the Veteran's DD Form 1141 states he was exposed to ionizing radiation for an accumulated total lifetime dose of 00.060 rem. The Director observed that the Health Physics Society in their position statement 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. He noted that although there is substantial and convincing scientific evidence for health risks following high-dose exposures, 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. The Director concluded that because the Veteran's reported radiation dose did not exceed 5 rem in one year or 10 rem in a lifetime, it is his opinion that it is unlikely that the Veteran's rectal cancer can be attributed to radiation exposure while in military service. In an April 2015 radiation review opinion, the committee reviewed the opinion from the Director and also found that the Veteran was 19 years old when exposed to ionizing radiation. It was noted that rectal cancer was diagnosed 30 years after exposure to ionizing radiation. Post-service employment is specified. Family history is positive for the Veteran's mother with breast cancer and his father with bone cancer. The committee concluded that there is no reasonable possibility that the Veteran's rectal cancer was the result of exposure to ionizing radiation. In an April 2015 statement, the Veteran indicated that his type of squamous cell anal cancer is caused by Isotope radiation. He also stated that he has had no job or exposure to radiation or cancer-causing substances prior to or after his military service. Upon review of the entire evidence of record, to include the treatment records, lay statements as well as testimony from the Veteran, records of his ionizing radiation exposure, and the medical opinions of record, the Board finds that the Veteran was exposed to ionizing radiation during his period of active service. The Board notes, however, in considering the evidence of record under the laws and regulations as set forth above, the Veteran is not entitled to service connection for rectal cancer as a result of his exposure to ionizing radiation. The Board finds that the 2015 opinion issued by the VA Director of the Post 9/11 Era Environmental Health Program is the most probative evidence of record. The opinion considered the relevant evidence and was supported by a compelling explanation. The record contains a December 2013 from J.D.M, MD, Radiation Oncologist from DGMC radiation therapy clinic that found it was at least as likely as not that the Veteran's rectal cancer resulted from his exposure to radiation during service. The Board finds, however, that this opinion was of little probative value as it did not discuss the actual dose estimate and how that dose was causative for rectal cancer. Further, although the physician indicated that the Veteran did not present with classic risk factors associated with rectal cancer, he did not address the Veteran's history of smoking or methamphetamine use. The Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board has considered the Veteran's statements and testimony that his rectal cancer was caused by his exposure to radiation in service. Whether the Veteran's cancer is related to his radiation exposure is a complex medical question and is not within the knowledge of a lay person or determinable by observation with one's senses. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, his lay statements and testimony are not competent evidence and have little probative value. The Board has also considered whether service connection for the Veteran's rectal cancer can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service on a direct basis. The service treatment records do not contain any symptoms of or treatment for rectal cancer. The Veteran was not diagnosed with rectal cancer until 2013, many years after service. In addition, the Veteran has not attributed his rectal cancer to any in-service event or injury other than his in-service exposure to ionizing radiation, which has already been addressed above. The claims file does not contain any competent evidence relating the Veteran's rectal cancer to his service. The preponderance of the evidence weighs against a grant of service connection for the Veteran's rectal cancer on any basis. As such, the claim of entitlement to service connection for rectal cancer must be denied. There is no reasonable doubt to be resolved as to the issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.