Citation Nr: 21077271 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-18 638 DATE: December 29, 2021 ORDER Entitlement to service connection for spheno cavernous sinus meningioma is denied. FINDING OF FACT The probative evidence reflects that the Veteran's spheno cavernous sinus meningioma did not manifest in service, and it is not otherwise related to his active service. CONCLUSION OF LAW The criteria for service connection for spheno cavernous sinus meningioma have not been met 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1986 to September 1990. The issue is before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issue was before the Board in July 2019 and remanded. The RO was mandated to request a dose estimate from the Under Secretary of Health and if it was determined that the Veteran was exposed to ionizing radiation, refer the Veteran's claim to the Under Secretary for Benefits for further consideration under 38 C.F.R. § 3.311(c). Of record is an August 03, 2021, Memorandum from the Under Secretary of Health and August 10, 2021, Reply Memorandum to the Compensation Service Director for Radiation Review. On August 16, 2021, Advisory Opinion on Radiation was obtained. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for spheno cavernous sinus meningioma is denied. The Veteran asserts that his spheno cavernous sinus meningioma (sinus cancer) is due to ionizing radiation exposure from nuclear warheads and dental x-rays, herbicide agent exposure aboard the USS Shasta (AE-33), non-ionizing radiation from radar, and airborne contaminants exposure during weapons maintenance. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). To establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection for a disease as due to radiation exposure can be established in one of three ways: (1) by demonstrating that the condition at issue is one of the types of cancer that are presumptively service-connected under 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309; (2) by demonstrating direct service connection under 38 C.F.R. § 3.303, a task that "includes the difficult burden of tracing causation to a condition or event during service," Combee v. Brown, 34 1039, 1043 (Fed. Cir. 1994); or (3) by demonstrating direct service connection under 38 C.F.R. § 3.303, with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is one of the "radiogenic diseases" listed by the Secretary in § 3.311(b). Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997). 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. Radiation-risk activity is defined to mean onsite 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 (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. Radiation-risk activity also includes certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio, and Oak Ridge, Tennessee; in certain circumstances, service before January 1, 1974, on Amchitka Island, Alaska if, during such service, the veteran was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests; or service in a capacity which, if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000. 38 C.F.R. § 3.309 (d)(3)(ii). Radiogenic diseases will be service connected if certain processing conditions are met. 38 C.F.R. §§ 3.303 (d), 3.311. Pursuant to 38 C.F.R. § 3.311, when it is determined that: (1) The veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and (3) such disease first became manifest within a period specified by the regulations, a request for available records concerning the veteran's exposure to radiation will be made, and the case will be referred to the Under Secretary for Health for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the veteran's disease resulted from radiation exposure during service. 38 U.S.C. § 501 (2012); 38 C.F.R. § 3.311 (b). The term radiogenic disease means a disease that may be induced by ionizing radiation. 38 C.F.R. §§ 3.311 (b). The diseases listed in 38 C.F.R. § 3.309 (d) are diseases the VA has determined that a positive association with radiation exposure exists. For cancer, the disease must have manifested five years or more after exposure. 38 C.F.R. § 3.311 (b)(5). This section does not provide presumptive service connection for radiogenic diseases but only outlines a procedure to be followed for adjudication purposes. Medical opinions are ultimately the criteria upon which service connection rests under this regulation. A. Presumptive service-connection under 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 The Veteran's DD-214 and personnel records show that he was a machinist mate aboard the USS Shasta (AE-33). The record shows that he has been diagnosed with complex spheno cavernous meningioma. Brain cancers are listed in 38 C.F.R. § 3.309 (d). However, presumptive service connection under 38 C.F.R. § 3.309 (d) is not warranted because the record does not show that the Veteran was involved in a radiation-risk activity as defined by VA regulation. He does not assert that he was part of a radiation-risk activity. Thus, presumptive service connection on the basis for diseases specific to radiation-exposed veterans, who engaged in a radiation-risk activity, as defined under 38 C.F.R. § 3.309(d)(3), is not for application. B. Presumption due to herbicide agent exposure Presumptive service connection is available for Veterans who serve in the Republic of Vietnam, or within 12 nautical miles seaward from the demarcation line of the waters of Vietnam and Cambodia during the Vietnam era, or near the Korean DMZ from September 1, 1967, and August 31, 1971, and has one of the specific diseases associated with exposure to herbicide agents listed under 38 C.F.R. § 3.309 (e) that becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307. The Veteran's DD-214 shows that he is not a Vietnam-era Veteran, nor has he so asserted. Further, neither brain cancer nor brain tumor or sinus cancer is listed amongst the 17 Agent Orange-related illness. Therefore, as he is not presumed to have been exposed to herbicide agents, the herbicide presumption under 38 C.F.R. §§ 3.307 (a) is also not for application. 38 U.S.C. § 1116 (a); 38 C.F.R. §§ 3.307 (a)(6), 3.313(a). C. Direct service connection ionizing and non-ionizing radiation As the Veteran is not afforded presumptive service connection for his disability, the Board must consider direct service connection, under 38 C.F.R. § 3.303 with actual direct causation. Combee, 34 1039, 1043 (Fed. Cir. 1994). Additionally, with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311 if the condition at issue is one of the "radiogenic diseases" listed by the Secretary in § 3.311(b). Cancers, including brain cancer, are considered radiogenic diseases under 38 C.F.R. § 3.311(b)(2). An Enlistment/Reenlistment Document in his personnel record dated March 1987 notes in the Administrative Remarks section that ... the fact that the USS Shasta is capable of carrying nuclear weapons is unclassified. However, whether or not there are nuclear weapons aboard at any time is classified. - Studies of ships of this class have indicated you will not receive more radiation than is allowed members of the general public. A radiological controls program is in effect to ensure radiation exposures are known and controlled. Regarding dental x-rays, he was seen at the dental clinic for annual examinations in September 1986, February 1987, March 1988, March 1989, and March 1990, with visits for intermediate treatments in February 1987, March 1987, and April 1990. The post-service treatment records dated in July 2013 note that the Veteran was diagnosed with a complex spheno cavernous meningioma in 2012, right parietal area, with surgery done in February 2012. In June 2015, the Naval Dosimetry Center stated that a review of their exposure registry by name, service number, and social security number, "revealed no reports of occupational exposure to ionizing radiation pertaining to this veteran." Based on the Board's July 2021 remand, the Director of Compensation, on August 03, 2021, provided a Memorandum on Radiation Review Under 38 C.F.R. § 3.311 to the Under Secretary for Health, Health Outcomes of Military Exposures to provide a dose estimate. On August 10, 2021, the Director, Post-9/11 Environmental Health Program, provided a Memorandum regarding Radiation Review. The Director assigned "a dose of 2.5 rem (total effective dose equivalent) to the Veteran, which is calculated as 0.5 rem per year x 5 calendar years of service (1986 through 1990)." The Director explained that this dose was more favorable than the "US Navy's record of no dose." Further, the memorandum acknowledged that [t]o assess the claimed in-service dental radiation dose (1975 through 1987), we make the following assumptions: 5 calendar years of diagnosis and treatment, so 5 annual examinations. 5 Panorex exam (whole mouth and jaw) x-rays x .025 mSv/exam = 1.25 mSv(0.125 rem). 10 whole mouth series of individual x-rays x 0.171 mSv/series = 1.710 mSv (0.171 rem). For this we assume, he had double the series as more than 1 treatment visit per year was likely. Not every visit would result in this many x-rays, yet we err in the Veterans' favor. Total dose from dental x-rays: 0.125 rem + 0.171 rem = 0.269 rem. The total radiation dose for the Veteran is the sum of the above: 2.5 rem (assigned per 10 CFR 20) + 0.269 rem (dental x-ray dose) = 2.769 rem. The Director of the Post-9/11 Environmental Health Program concluded, Based on the above, and because the Veterans' assigned lifetime total ionizing radiation dose (2.769 rem) did not exceed 0.1 Sv (10 rem) above natural background, it is unlikely that complex right spheno cavernous meningioma (sinus cancer) was caused by exposure to ionizing radiation and/or non-ionizing radiation (RFR) during military service. The Veteran did not submit a separate dose estimate. 38 C.F.R. § 3.311(a)(3). After the dose estimate was provided by the Director, Post-9/11 Environmental Health Program, an August 2021 Advisory Opinion was provided by the Director, Compensation Service, addressing connection for cancer of the sinuses due to exposure to ionizing radiation during service. 38 U.S.C. § 3.311(c) states that a radiation claim is forwarded to the Undersecretary for Benefits (USB) to consider the claim with reference to the factors set forth in 38 C.F.R. § 3.311(e). Although the opinion was provided by the Director of the Compensation Service, the Secretary of VA has delegated authority to the USB to designate others under his control to make findings and render decisions. 38 C.F.R. § 3.100. The Director of the Compensation Service's opinion complies with 38 C.F.R. § 3.311(e). Parrish v. Shinseki, 24 Vet. App. 391 (2011). The Director of the Compensation Service noted that the Veteran was approximately 23 to 26 years old when he was possible exposed to radiation, and that he was approximately 48 years old, which was approximately 22 years after his last claimed exposure to ionizing radiation. She concluded that based on the cumulative scientific data noting that at doses below 10 rems (100 mSv), there is not a statistically significant increased risk in disability/disease from radiation, and the likelihood of such disability/disease being due to ionizing radiation in service (for a Veteran with less than 10 rems of exposure) is not likely. In support of her position, she cited the two leading experts in the field of radiation risk, The Health Physics Society and the National Academies, finding that the cumulative scientific data notes that at doses below 10 rems (100 mSv) is not a statistically significant increased risk in disability/disease from radiation. The Health Physics Society determined that "substantial and convincing scientific data shows that below levels of 10 rem (100mSv) the observed radiation effects in people are not statistically different from zero." Their position statement, "Radiation Risk in Perspective," states that radiogenic health effects have not been consistently demonstrated below 100mSv. The Director submitted a study titled "Potential Radiation Exposure in Military Operations, Protecting the Soldier Before, During, and After" published by the National Academy Press. In a Table titled "Comparative Susceptibilities (based on percent increases in background incidence) of Different Tissues to Radiation-Induced Cancer), tissues were categorized by High, Moderate, Low, and Very low or absent. Brain tissue, connective tissue, and nasal sinuses were in the "Low" category. The Director of the Compensation Service acknowledged that the Veteran did not have any post-service radiation exposure. However, his dose estimate was 2.769 rems, which is significantly less than 10 rems, which is probative evidence against a finding that his ionizing radiation exposure caused his cancer. The dose estimate memorandum and the memorandum from the Director of the Compensation Service are highly probative evidence against the Veteran's claim. The dose estimate was significantly less than 10 rem, and the evidence provided in the Director of the Compensation Service's memorandum supports a finding that in a person with a dose of less than 10 rem, the observed radiation effects are not statistically different from zero. Although the Director's memorandum is not binding, it is persuasive evidence against the claim. Based on the dose estimate, which the Director of the Post-9/11 Environmental Health Program stated was a favorable overestimate, and the reasoning and evidence presented by the Director of the Compensation Service, the Board finds that it is less likely than not that the Veteran's ionizing radiation exposure caused his brain cancer. Regarding non-ionizing radiation, the Director of the Post-9/11 Environmental Health Program explained that when acute exposure to radio frequency radiation (RFR), microwaves, and radar transmission occurs, "the effects are thermally mediated and immediately perceptible, which limits the possibility of injury." The Director of the Post-9/11 Environmental Health Program stated that, Unlike ionizing radiation, RF radiation is not known to cause cancer, and the adverse health effects are not cumulative. Several well-documented and peer-reviewed scientific studies have been completed concerning exposure to military radar systems and the occurrence of various diseases. One such study 5 indicates that when compared to the general population, there was no increased risk of any disease, and, for cancers, the occurrence rates of the Veterans involved in the study were less than (e.g., brain cancer, testicular cancer, and lymphoma) or similar to (e.g., leukemia) those in the general population. The consensus of scientific advisory bodies, such as the National Council on Radiation Protection and Measurements (NCRP), the World Health Organization (WHO), and the National Radiological Protection Board (NRPB), is that there are no long-term effects (including cancer) from low-level exposures to radiofrequency radiation (RFR). Another extensive epidemiological study of Navy personnel working with radar systems did not find any adverse health effects that could be attributed to RFR exposure. Based on this reasoning, the Director of the Post-9/11 Environmental Health Program found it "unlikely" that the Veteran's disability was caused by exposure to non-ionizing radiation. This opinion is highly persuasive and is probative evidence against the claim. The Board acknowledges that the Veteran is competent to report on his observable events during service or spheno cavernous meningioma symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Whether his spheno cavernous meningioma is related to his in-service ionizing and non-ionizing radiation exposure and/ exposure falls outside the realm of common knowledge of the Veteran in this case. Determining the etiology of his cancer requires medical inquiry into biological processes, anatomical relationships, physiological functioning, and the impact of radiation on the body. Such internal physical processes are not readily observable and are not within the competence of the Veteran, who, in this case, has not been shown by the evidence of record to have the training, experience, or skills needed to provide a competent etiology opinion. Although he is competent to report the persistence of his observable symptoms, he is not competent to provide a link to his exposure to radiation and the symptoms he experiences. As a result, his lay opinion is not competent. Again, the Board finds the Director of the Post-9/11 Environmental Health Program's dose estimate and the Advisory Opinion highly persuasive evidence weighing against a nexus to the Veteran's in-service ionizing and non-ionizing radiation exposure. Service connection on a direct basis as due to exposure to ionizing and non-ionizing radiation is denied. Direct Service Connection Herbicide Agents In his December 2014 notice of disagreement (NOD), the Veteran asserted that the USS Shasta (AE-33) "carried [herbicide agents] in Vietnam, etc." The Veteran's period of service was from September 1986 to September 1990, years after the end of the Vietnam Era, by which time herbicide agents were no longer used. There is no competent evidence of record showing that the USS Shasta (AE-33) had herbicide agents aboard at the time of the Veteran's service, or that transported herbicide agents to or from Vietnam prior to his service. Even if herbicide agents had been aboard the USS Shasta, there is no competent evidence that it was contaminated by herbicide agents years later, or that the Veteran was actually exposed. The Veteran did not state that he saw what he thought were herbicide agents while he was aboard the ship. Instead he asserts that he was exposed because he believed that herbicide agents had been transported on his ship many years earlier. He is not competent to identify an herbicide agent as specified in 38 C.F.R. § 3.307(a)(6), as the record does not show he has the requisite chemical knowledge. He has professed no specialized ability to detect herbicide agents lingering in the environment, and his assertions of exposure are essentially speculative. His lay statements alone are not competent evidence to establish that exposure to herbicide agents occurred. His service treatment records and service personnel records also do not document that he was exposed to herbicide agents. There is no competent evidence of record supporting the Veteran's assertion that he was exposed to herbicide agents. Therefore service connection for his cancer on a direct basis due to herbicide agents exposure is denied. Direct service connection other airborne contaminants In his December 2014 NOD, the Veteran makes the generic assertion that he was exposed to "a multitude of airborne contaminants during the maintenance of the air filters from the spaces where these [non-conventional] weapons were kept..." on the USS Shasta. An opinion regarding etiology based on exposure to airborne contaminants is not needed. The Veteran has a diagnosis of cavernous meningioma. However, there is no probative evidence establishing that an event, injury, or disease occurred in service related to other airborne contaminants. The Veteran did not identify what he thought the contaminants were in the NOD or subsequent correspondence. Even if the Veteran were exposed to unidentified hazardous substances other than radiation, the vague and conclusory statement that these hazards caused his cavernous sinus meningioma is insufficient to meet even the low threshold needed to trigger the need to provide a medical opinion. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Lastly, his statement is not competent evidence in support of his claim. The record does not show that he has knowledge of the impact of contaminants, identified or not, on the human body. Determining whether a contaminant in the air caused his cavernous sinus meningioma is a complicated medical question and the Veteran in this case does not have the skills, experience, or medical training needed to provide a competent opinion in this case. There is no persuasive evidence supporting a finding that the Veteran was exposed to contaminants that caused his disability. Service connection on this basis is denied. The Veteran has not raised any other theories as to why his cavernous sinus meningioma is related to service. The Veteran's service treatment records (STRs) do not show complaint, treatment, or diagnosis of a brain condition or sinus condition. The separation physical of July 1990 noted normal head and sinuses. He has not advanced a theory of service connection other than exposure to ionizing and non-ionizing radiation, herbicide agents, and unidentified airborne contaminants. The post-service treatment records do not raise another theory. The competent and most persuasive evidence of record is against the claim. For these reasons, service connection for spheno cavernous sinus meningioma is denied. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.