Citation Nr: 21076218 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 14-05 234 DATE: December 22, 2021 ORDER Entitlement to service connection for multiple myeloma, as due to exposure to ionizing radiation is denied. Entitlement to service connection for deep vein thrombosis, as secondary to multiple myeloma is denied. Entitlement to service connection for pulmonary infarct/embolism, as secondary to multiple myeloma is denied. Entitlement to service connection for a low back condition, as secondary to multiple myeloma is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's multiple myeloma is etiologically related to his active duty service, to include any claimed in-service exposure to radiation. 2. The preponderance of the evidence is against a finding that the Veteran's deep vein thrombosis was proximately caused or aggravated by a service-connected disability. 3. The preponderance of the evidence is against a finding that the Veteran's pulmonary infarct/embolism was proximately caused or aggravated by a service-connected disability. 4. The preponderance of the evidence is against a finding that the Veteran's low back condition was proximately caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for multiple myeloma, as due to exposure to ionizing radiation have not been met. 38 U.S.C. § 1110, 1131, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. 2. The criteria for entitlement to service connection for deep vein thrombosis, as secondary to multiple myeloma have not been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for pulmonary infarct/embolism, as secondary to multiple myeloma have not been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for entitlement to service connection for a low back condition, as secondary to multiple myeloma have not been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from March 1971 to September 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In September 2017, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board notes that the VLJ who conducted this hearing is no longer employed at the Board. VLJs who conduct hearings must participate in making the final determination of the claim on appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In a May 2021 letter, the Board notified the Veteran that the VLJ was no longer employed by the Board and informed him of the right to another hearing. This letter also informed that if the Veteran did not respond within 30 days, the Board would assume that another hearing was not desired and would proceed to adjudicate the claim on appeal. The Board notes that, as of this date, the Veteran has not responded to said letter; therefore, the Board assumes that the Veteran does not wish to appear at another hearing. In February 2018, these matters were previously before the Board, where they were remanded for additional development. The Board notes that there was substantial compliance with its February 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for multiple myeloma, as due to exposure to ionizing radiation. The Veteran contends that his current multiple myeloma is directly related to his exposures to ionizing radiation during his active duty service, specifically from military flights in bombers, proximity to nuclear weapons, and from annual flight physical chest x-rays taken on old x-ray equipment. Service connection for a disability that is claimed to be caused by exposure to ionizing radiation can be established by several alternative methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are specific diseases that may be presumptively service connected if manifested in a radiation-exposed veteran. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). A radiation-exposed veteran is one who 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, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Second, 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 became manifest after service, was not manifested to a compensable degree within any applicable presumptive period specified in either 38 C.F.R. § 3.307 or § 3.309, and it is contended that it resulted from exposure to ionizing radiation in service. 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 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 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). A "radiogenic disease," pursuant to 38 C.F.R. § 3.311, is a defined as a disease that may be induced by ionizing radiation, and specifically includes the following: all forms of leukemia (except chronic lymphatic 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. Third, direct service connection can be established pursuant to 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. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As an initial matter, a review of the record reflects that the Veteran has not asserted, nor does the record otherwise suggest, that he is a radiation-exposed veteran for consideration of presumptive service connection under 38 C.F.R. § 3.309(d), as he did not participate in one of the specifically listed radiation-risk activities in 38 C.F.R. § 3.309(d)(3). However, as noted above, if a claimant does not qualify as a radiation-exposed veteran under 38 C.F.R. § 3.309(d)(3), 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. Here, the Veteran's diagnosis of multiple myeloma is considered a radiogenic disease, and the Veteran has asserted that his condition is a result of exposure to ionizing radiation while in service. Therefore, a dose estimate is required. 38 C.F.R. § 3.311(a)(1). In May 2020, the Director of Compensation Service forwarded the Veteran's claims file to the Under Secretary for Health to prepare a dose estimate, and to the extent feasible, provide an etiology opinion as to whether it is likely, unlikely, or as likely as not that the Veteran's multiple myeloma resulted from exposure to radiation in service. See VA Memo, May 2020. In July 2020, the Director, Post 9/11 Era Environmental Health Program for the Under Secretary for Health ("Under Secretary for Health") issued a radiation review and medical opinion memorandum in response to the Director of Compensation Service's May 2020 VA memorandum. Upon review, the Under Secretary for Health noted the Veteran's contentions and the pertinent medical evidence of record, and assigned a dose estimate of 11.5 rem (total effective dose equivalent "TEDE") and multiplied it by a factor of 3 in order to account for the unknown medical radiation dose, totaling an assigned 34.5 rem TEDE for the Veteran's 23 years of service. The Under Secretary for Health considered the factors set forth in 38 C.F.R. § 3.311(e) and used the Interactive Radioepidemiological Program of the National institute for Occupational Safety and Health to estimate the likelihood that exposure to ionizing radiation was responsible, calculating a 99th percentile value for the probability of causation of 29.82 percent for multiple myeloma. Therefore, opining that it is unlikely that the Veteran's multiple myeloma was caused by exposure to ionizing radiation while in military service. See VA Memo, July 2020. Subsequently, in July 2020, the Director of Compensation Services issued an advisory opinion in response to the Under Secretary for Health's medical opinion, concurring with the Under Secretary for Health's analysis and unfavorable opinion, and further opining that there is no reasonable possibility that multiple myeloma can be attributed to ionizing radiation exposure during military service. See VA Memo, July 2020. Therefore, based on the above, the Board finds that the probative evidence of record is against a finding that service connection under 38 C.F.R. § 3.311 is warranted. Furthermore, after review of the record, the Board notes that direct service connection under 38 C.F.R. § 3.303(d) is also not warranted. Service treatment records (STRs) are silent for any complaints, treatments, or diagnosis of multiple myeloma. Post-service VA and private treatment records reflect a diagnosis of multiple myeloma as early as March 2012. In August 2017, the Veteran submitted a private medical opinion from his treating oncologist, who confirmed the Veteran's diagnosis of terminal multiple myeloma and opined that it was caused by his exposure to radiation in connection with his military service. The oncologist noted that the Veteran's military doctor at the time indicated that his multiple myeloma was a result of exposure to radiation in his role as an aircrew member in strategic nuclear bombers, proximity to nuclear weapons, and exposure to military medical x-rays. See Private treatment record, August 2017. The Board finds the August 2017 private medical opinion to be inadequate, as the opinion is unsupported by a rationale or explanation. While the Board acknowledges the oncologist's reiteration of a medical opinion given from the Veteran's military doctor, the Board notes that the record does not reflect such medical opinion within the file, with the Veteran himself testifying that the opinions given were based solely on the Veteran's statements to them regarding his in-service exposure, without any review of his records or claims file, or medical data to support their overall favorable conclusions. See Hearing Transcript, September 2017. Conversely, the Board finds the July 2020 medical opinions by the Under Secretary for Health and Director of Compensation Services to be highly probative, as they both thoroughly reviewed the Veteran's entire claims file and considered all pertinent evidence of record, to include the Veteran's lay statements, and based their opinions on an accurate medical history with an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes the Veteran's lay statements of record reflect that during the period from 1970 to 1978, the Veteran reported 8 mandatory chest x-ray procedures for his annual flight physical, in which the x-rays during this time were old and often required multiple attempts to obtain a viable image, emitting large amounts of radiation. He then reported an additional 21 x-ray procedures during the rest of his military service. Additionally, he estimated that during his time as an aircrew member in nuclear bombers, over 500 days were spent on nuclear alert, which was in direct contact with nuclear weapons. See Correspondence, September 2017; see also Hearing Transcript, September 2017. The Veteran's military records reveal he served as a navigator with Strategic Air Command, and his performance review records show that his duties involved nuclear weapons and flight time. Military records also confirm that he received annual chest x-rays. The Board has considered the Veteran's lay statements that his current multiple myeloma was caused by his exposures to ionizing radiation while on active duty service. However, the question of etiology is not a matter for lay observation but can be established only through objective clinical testing or observations, and the Veteran does not have the medical training or knowledge to provide a medical nexus opinion relating his multiple myeloma to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, based on the above, the Board finds that the probative medical evidence of record is against a finding that service connection under 38 C.F.R. § 3.303(d) is warranted; and the claim is denied. In reaching this determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its applications. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to service connection for deep vein thrombosis, as secondary to multiple myeloma. 3. Entitlement to service connection for pulmonary infarct/embolism, as secondary to multiple myeloma. 4. Entitlement to service connection for a low back condition, as secondary to multiple myeloma. The Veteran contends that his deep vein thrombosis, pulmonary infarct/embolism, and low back condition were proximately caused or aggravated by his multiple myeloma. Service connection may be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities, and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). The Board notes that service connection for multiple myeloma has not been established, and therefore, association of deep vein thrombosis, pulmonary infarct/embolism, and/or low back condition on a secondary basis of that disease cannot be considered. The Board has considered the Veteran's lay statements that his current deep vein thrombosis, pulmonary infarct/embolism, and low back condition were proximately caused or aggravated by his multiple myeloma. However, the question of etiology is not a matter for lay observation but can be established only through objective clinical testing or observations, and the Veteran does not have the medical training or knowledge to provide a medical nexus opinion relating his deep vein thrombosis, pulmonary infarct/embolism, and/or low back condition to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, service connection for deep vein thrombosis, pulmonary infarct/ embolism, and low back condition, as secondary to multiple myeloma, is denied. In reaching this determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its applications. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.