Citation Nr: A21019451 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 211008-190232 DATE: December 7, 2021 ORDER Entitlement to service connection for cataracts is denied. Entitlement to service connection for leukemia is denied. FINDING OF FACT Despite the Veteran having a dose estimate of 27.32 rem's, he did not participate in one of the specifically enumerated radiation-risk activities while on active duty and the preponderance of the evidence shows that leukemia and cataracts were not present during active duty or until many years thereafter and they are not related to active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for leukemia have not been met. 38U.S.C. §§1101, 1110, 1112, 1113, 1131, 5107; 38C.F.R. §§3.102, 3.303, 3.307, 3.309, 3.311. 2. The criteria for service connection for cataracts have not been met. 38U.S.C. §§1101, 1110, 1112, 1113, 1131, 5107; 38C.F.R. §§3.102, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1954 to May 1956. This appeal comes to the Board of Veterans' Appeal (Board) under the Appeals Modernization Act (AMA) review system. See 84 Fed. Reg. 138 (Jan. 18, 2019). In September 2021, the agency of original jurisdiction (AOJ) issued a Supplemental Statement of the Case addressing the current appeal. In October 2021, the RO received the Veteran's VA Form 10182 (AMA NOD) in which he opted into the AMA appeal review system, selecting the Direct Review lane. In June 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In May 2013, the Board of Veterans' Appeal (Board) denied entitlement to service connection for the issues on appeal. The Veteran appealed that decision to the United States Court of Appeal for Veterans Claims (Court). In March 2014, the Court granted a joint motion for remand (JMR1) and vacated the May 2013 Board decision. In September 2014, the Board again denied the Veteran's claims of service connection for leukemia and cataracts and remanded the issues of entitlement to service connection for thyroid and hand tremor disabilities. The development provided evidence against these claims. The Veteran also appealed that decision to the Court. In June 2015, the Court granted another JMR (JMR2) vacating the September 2014 Board decision to the extent that it denied service connection for leukemia and cataracts and remanding these issues to the Board for action consistent with the terms of the JMR2. In December 2015, the Board remanded all four issues for further development. The development provided evidence against these claims. In March 2017 the Board dismissed the claim of service connection for hand tremors after the Veteran withdrew his appeal of the claim and remanded the remaining claims for additional development. In May 2019, the Board remanded the appeal. Again, the development provided more evidence against these claims. In March 2020, the Board again denied the Veteran's claims of service connection for leukemia, cataracts, and a thyroid disorder. The Veteran also appealed that decision to the Court. In October 2020, the Court granted another JMR (JMR3) vacating the March 2020 Board decision. In May 2021, the Board remanded the appeal, for additional development consistent with the JMR3, which has been completed. During the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted the claim of service connection for a thyroid disability in a September 2021 rating decision. Therefore, this issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Adequacy of the Post-Remand Development, the Concerns Raised by the JMRs and the Veteran's Representative, as well as the Adequacy of the 38 C.F.R. § 3.311 Development Initially, the Board finds that the post-Remand developed substantially addressed the concerns raised by the parties in the JMRs, complied with the Board remand directions, as well as fully addressed the problems raised by the Veteran's representative in its' briefs and complied with the development required by 38C.F.R. §3.311. See 38 U.S.C. § 5103A; Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board has reached this conclusion because the post-Remand record shows that the AOJ obtained adequate information for the Board to address the questions of whether the Veteran's occupational specialty as a radio operator while on active duty exposed him to ionizing radiation, his dose estimate, and whether his exposure to ionizing radiation while on active duty caused his current leukemia and/or cataracts. In reaching this conclusion, the Board must note that the Veteran's principal contention has been that he was exposed to ionizing radiation from the tubes under the counter in the van he worked in as a radar operator in service from August 1954 to May 1956 because they were being serviced while the radar was being operated, more than 60 years ago, and that this has caused the current conditions at issue. In light of the history of this case, the Board believes it is imperative to note for the record that the Veteran has provided highly limited factual evidence to support this belief regarding exposure to radiation in this manner. In this regard, to address this contention, the post-Remand record shows the following development by VA to address this theory of causation: 1. In November 2017 the RO contacted the United States Army Dosimetry Center and asked it whether the Veteran's duties as a radar operator put him in close enough proximity to a radar so as to expose him to ionizing radiation, and if so, an explanation as to how much radiation he was exposed to during his duties as a radar operator. 2. In January 2018 the United States Army Dosimetry Center notified the RO that it's search of its' files did not uncover any records showing that the Veteran was exposed to ionizing radiation while on active duty. 3. On March 1, 2018, the RO contacted the Director, Compensation Service and on March 7, 2018, the Director, Compensation Service contacted the VA Under Secretary for Health. As per the Board remand, the memorandums provided the details of the Veteran's service history as well as a summary of his personal hearing testimony in which he claims he was exposed to ionizing radiation from the tubes under the counter in the van he worked-in as a radar operator because they were constantly being serviced while the radar was being operated, and the fact that the United States Army Dosimetry Center did not provide an opinion as to whether the Veteran's duties as a radar operator put him in close enough proximity to a radar so as to expose him to ionizing radiation and a dose estimate. 4. On March 27, 2018, the Deputy Chief Consultant, Post Deployment Health Service, provided the Director, Compensation, an opinion. The opinion specifically considered and discussed the Veteran's service personnel records and personal hearing testimony regarding his radiation exposure occurred as a result of his duties as a NIKE Hercules radar operator to include his claims that he was exposed from the tubes in cabinets below the counter which maintenance technicians worked on while the radar system was operational. Based on the above, the Veteran was given a dose estimate of 1.5 rem's. It was also opined that it was unlikely that his ionizing radiation caused his current leukemia and cataracts. 5. On March 27, 2018, the Director, Compensation Service provided the RO with a copy of the March 27, 2018, Deputy Chief Consultant, Post Deployment Health Service, opinion along with a summary of that opinion. 6. In May 2019, the RO via the Director, Compensation Service contacted the VA Under Secretary for Health and asked for a new dose estimate and etiology opinion that considered, among other things, the above history and the Briefs filed by the Veteran's attorney along with the supporting medical opinion and treatise evidence. 7. On July 24, 2019, the Deputy Chief Consultant, Post Deployment Health Service, provided the Director, Compensation, provided VA with an updated opinion. The opinion again specifically considered and discussed the Veteran's service personnel records and personal hearing testimony regarding his radiation exposure. It also specifically considered and discussed, among other things, the Veteran's representative's Briefs, the appellant's statements, the medical opinions from Dr. Warren Alexander and Dr. Bradly D. Keck, and the reports filed by the Veteran's attorney included the one entitled "Emission of Parasitic X-Rays from Military Radar Transmitters and Exposure of Personnel: Towards a Retrospective Assessment." Thereafter, in order to give the Veteran the greatest benefit of the doubt, the examiner, using the information provided to it by the Veteran and his attorney as well as all the statements from the health physicists that were consulted in this claim process, gave the claimant an updated dose estimate of 27.32 rem's regardless of whether his duties on active duty really entailed ionizing radiation exposure. The examiner thereafter opined that it was unlikely that the Veteran's ionizing radiation caused his current leukemia and cataracts. 8. On July 30, 2019, the Director, Compensation Service provided the RO with a copy of the July 24, 2019, Deputy Chief Consultant, Post Deployment Health Service, opinion along with a summary of that opinion. 9. The record shows that VA obtained and associated with the record medical opinions as to the etiology of the Veteran's leukemia and/or cataracts. See Veterans Health Administration (VHA) opinion regarding leukemia dated in December 2011 and VHA opinion; Deputy Chief Consultant, Post Deployment Health Service, opinions dated in March 2018 and July 2019. The Veteran's representative's argued in the March 2019, January 2020 and October 2021 submissions that the dose estimates provided by the Deputy in March 2018 and July 2019 were not adequate, because the record showed the Veteran had 27.32 rem's of ionizing radiation exposure while on active duty from the tubes under the counter in the van he worked-in as a radar operator because they were constantly being serviced while the radar was being operated and supported this claim with medical opinions from Dr. Warren Alexander and Dr. Bradly D. Keck as well as medical reports included one entitled Emission of Parasitic X-Rays from Military Radar Transmitters and Exposure of Personnel: Towards a Retrospective Assessment. In this regard, the Board must note that any attempt to get a does estimate based on the unique facts of this case, or to disprove the claim that the Veteran was exposed to radiation in this unique manner, is going to be inherently complex. Notwithstanding the fact that there is very limited factual evidence to support this finding, the Board has conceded that the Veteran had 27.32 rem's of ionizing radiation exposure while on active. Significantly, the May 2019 request for the second dose estimate specifically directed the Deputy to assume that the Veteran had 27.32 rem's of ionizing radiation exposure while on active duty. The second dose estimate request also directed the Deputy to specifically consider and discuss the appellant's service personnel records and personal hearing testimony regarding his radiation exposure as a radar operator, the medical opinions from Dr. Alexander and Dr. Keck, and the medical reports provided by the appellant which included the one entitled Emission of Parasitic X-Rays from Military Radar Transmitters and Exposure of Personnel: Towards a Retrospective Assessment. The Deputy in the second dose estimate dated in July 2019, after a detailed discussion of all of the above evidence opined, in substance, that it was unlikely that the Veteran's 27.32 rem's of ionizing radiation exposure while a radar operator on active duty in the 1950's caused his current leukemia and/or cataracts, notwithstanding Dr. Alexander and Dr. Keck's opinions and the medical reports provided by the appellant. Therefore, notwithstanding the March 2019, January 2020 and October 2021 submissions and the concerns raised by the JMR3, the Board finds that it need not obtain a third dose estimate because the second dose provided by the Deputy in July 2019 already substantially addressed all the concerns raised by the Veteran's representative in the March 2019, January 2020 and October 2021 submissions. To the extent that the October 2021 submission argued that the March 2018 and July 2019 opinions from the Deputy Chief Consultant were inadequate because the Deputy Chief Consultant only considered the radiation dose and failed to discuss all of the factors under 38 C.F.R. § 3.311(e), the Under Secretary for Benefits need not explicitly discuss each of the six factors in the advisory opinion, but rather, consult with these factors as a point or reference in making a recommendation to the RO. Stone v. Gober, 14 Vet. App. 116, 120 (2000) (citing Hilkert v. West, 12 Vet. App. 145, 149-50 (1999) (en banc)). In any event, the July 2019 opinion, discussed the dose estimate, along with the Veteran's age at the time of exposure, the time lapse between exposure and onset of the claimed diseases, the lack of family history of malignancy, the lack of documentation of exposure to other carcinogens such as tobacco use, and referenced his occupational background post-service discharge as CPA. Consequently, the Board finds that the directives under 38 C.F.R. § 3.311(e) have been essentially complied with. The Board finds that the post-Remand development outlined above substantially complied with the concerns raised by the parties in the JMRs, complied with the Board Remands, and fully addressed the problems raised by the Veteran's representative in its' Briefs even though the Army never told VA if the Veteran's duties as a radar operator put him in close enough proximity to a radar so as to expose him to ionizing radiation. As noted, in adjudicating the below claims the Board will apply this higher dose estimate of 27.32 rem's, the Board finds that the Veteran is not harmed by the Army's failure to reply to VA's information request. The Board also finds that the post-Remand development complied with 38 C.F.R. § 3.311 because it shows VA obtained dose estimates and medical opinions as to the relationship between the Veteran's disabilities and his military service to include his ionizing radiation exposure. Next, the Board finds that the above medical opinions obtained by VA are adequate to adjudicate the claims because they were provided after a review of the record on appeal and/or an examination of the Veteran and considered the Veteran's contentions, as well as because they are supported by ciation to evidence found in the record and/or controlling medical literature. Similarly, the Board finds that where, as here, "service medical records are presumed destroyed,... the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The cases, however, do not establish a heightened "benefit of the doubt," but rather only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed. The case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). In any event, the Veteran's own statements do not suggest, in any way, that if the service medical records were available, they would provide a basis to grant this claim. Therefore, the Board finds that adjudication of this appeal may go forward without these records. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim... [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"). Further, the JMR3 asked the Board to consider two misstatements in the March 2020 decision on appeal. First, the Board's statement that adjudication of the appeal "was delayed on ten occasions by the Veteran's representative requesting 60 and/or 90 day extensions of time to file additional evidence in support of the appeal." The Board herein acknowledges that, as noted in the JMR3, five of the letters the Board referred to were not requests for 90-day extensions of time, but requests that the Board hold the case open for a full 90 days after the appeal was returned to the Board. Second, the JMR3 noted that the March 2020 Board decision incorrectly found that the appeal was remanded in May 2019 because the Veteran's representative declined to waive AOJ review of additional evidence he filed with the Board in support of the appeal. The JMR3 noted that the Appellant expressly waived AOJ consideration of his March 2019 submission to the Board. The March 2019 Brief reflects that on the second page there was a note that indicated that the Veteran waived AOJ review of exhibit No. 1, the Veteran's May 21, 2018 statement. Importantly, the submission also reflects that a second note on page 5, wherein the appellant indicated that AOJ consideration of additional evidence, to specifically include Dr. Keck's March 2019 medical opinion report, would be waived if the claim for service connection was granted. Simply stated, the appellant indicated that if the claim could not be granted based on the evidence of record, the appeal should be remanded for initial AOJ consideration of Dr. Keck's March 2019 medical opinion report. As AOJ review of that evidence was only waived if the claim could be granted, which it was not, and the appellant explicitly requested that it otherwise be remanded for initial AOJ consideration, the Board finds that initial AOJ consideration of Dr. Keck's March 2019 medical opinion was not waived and a remand for initial AOJ review was thus required. 38 C.F.R. § 20.1304(c). These issues are not connected to the key issue in this case: Was the Veteran exposed to radiation from tubes in service more than 60 years ago and did it cause the problems at issue. Lastly, the Board finds that for the reasons explained above it substantially addressed the concerns raised by the parties in the JMRs, complies with the Board remands as well as fully addressed the problems raised by the Veteran's representative in its' Briefs and complied with the development required by 38 C.F.R. § 3.311. See Stegall, supra; Dyment, supra. There is simply no more evidence that can be obtained that would provide a basis to grant these claims, and more than likely additional development would provide more evidence against the claims. Again, context in this case is important: the wide-ranging actions already taken, the Veteran's distinctive principle contention, and actions that have already delayed this case must be considered in determining if another remand, and more delay, in this case is warranted. The Board finds it is not. 1. Entitlement to service connection for leukemia 2. Entitlement to service connection for cataracts The Veteran claims that service connection is warranted for leukemia and cataracts because they were caused by his military service to include his exposure to ionizing radiation while a radar operator in the 1950's. In connection with his claim, in July 2007, he noted his belief of exposure to radiation during service derived from reviewing information on the internet many years after service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1)medical 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 evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As to disease or injury caused by radiation exposure, service connection may also be established in one of two other ways. Combee v. Brown, 34 F.3d 1039, 1043-5 (Fed. Cir. 1994). First, if a veteran participated in service in a radiation-risk activity (as defined by statute and regulation) and, after service, developed one of the specifically enumerated cancers, it will be presumed that the cancer was incurred in-service. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). The list of the specifically enumerated cancers are as follows: (i) Leukemia (other than chronic lymphocytic leukemia); (ii) Cancer of the thyroid; (iii) Cancer of the breast; (iv) Cancer of the pharynx; (v) Cancer of the esophagus; (vi) Cancer of the stomach; (vii) Cancer of the small intestine; (viii) Cancer of the pancreas; (ix) Multiple myeloma; (x) Lymphomas (except Hodgkin's disease); (xi) Cancer of the bile ducts; (xii) Cancer of the gall bladder; (xiii) Primary liver cancer (except if cirrhosis or hepatitis B is indicated); (xiv) Cancer of the salivary gland; (xv) Cancer of the urinary tract; (xvi) Bronchiolo-alveolar carcinoma; Note: For the purposes of this section, the term "urinary tract" means the kidneys, renal pelves, ureters, urinary bladder, and urethra; (xvii) Cancer of the bone; (xviii) Cancer of the brain; (xix) Cancer of the colon; (xx) Cancer of the lung; and (xxi) Cancer of the ovary. The list of the specifically enumerated radiation-risk activities includes: onsite participation at atmospheric nuclear tests; participation in the occupation of Hiroshima or Nagasaki, Japan during specific periods of time; and service at specific nuclear weapons production facilities. 38 C.F.R. § 3.309 (d)(3). The Veteran has never indicated such exposure. He did not work with nuclear weapons, was never near a test cite for nuclear weapons, and was never in a place in which nuclear weapons were used. Second, if a veteran was exposed in service to ionizing radiation and, after service, developed one of the specifically enumerated diseases within a period specified for each by law, then his claim is 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. 38 C.F.R. § 3.311. The list of the specifically enumerated diseases are as follows: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. The availability of presumptive service connection does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. 38 U.S.C. § 5107(a). VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). i. The 3.309 (a) Presumptions As to service connection under 38 C.F.R. § 3.309 (a), the record does not show the Veteran being diagnosed with any of the claimed disorders in the first year following his separation from service. Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309 (a) do not apply to the current appeal and do not help this Veteran to establish service connection for leukemia or cataracts. ii. The 3.309 (d) Presumptions As to service connection under 38 C.F.R. § 3.309(d), the Veteran's record is negative for his service including any of the radiation-risk activities specifically listed by 38 C.F.R. § 3.309 (d)(3). The Veteran's own statements would support this finding. Service department findings are binding on the Board. See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Therefore, notwithstanding the Veteran's representative's claims to the contrary and the fact that for the purpose of this appeal the Deputy Chief Consultant, Post Deployment Health Service found in July 2019 that the Veteran had 27.32 rem's of ionizing radiation exposure, the Board finds that the record does not show the claimant had one of the specifically enumerated radiation-risk activities. 38 C.F.R. § 3.309(d)(3). There simply was no onsite participation at atmospheric nuclear tests, participation in the occupation of Hiroshima or Nagasaki, or service at specific nuclear weapons production facilities. To suggest otherwise is to disregard the Veteran's central contention. Accordingly, the Board finds that the presumptions found at 38 C.F.R. § 3.309 (d) do not apply to the current appeal and do not help this Veteran to establish service connection for leukemia or cataracts. iii. Service Connection under 3.303 Next, as noted above, the availability of presumptive service connection for a disability based on ionizing radiation exposure does not preclude a Veteran from establishing service connection with proof of direct causation. Combee, supra. Here, the post-service record shows the Veteran being diagnosed with leukemia, and cataracts. See. e.g., VA treatment records dated in January 2001, September 2001, and November 2006; VHA dated in December 2011. Next, the Veteran testified and his DD 214 shows that he was a radar operator more than half-a-century ago. As to his job functions, the Board finds that the Veteran competently and credibly testified that his duty was to watch the radar screen and, if need be, to call for firing weapons. See Davidson, supra. He also testified that he was in a van during this service and that there "was always technicians there everywhere working on the radar. It seemed like they were always servicing or doing something, leaving the doors open while using their operating radar system." The Veteran's own statements, as noted above, do not clearly indicate any exposure to radiation. It is, at best, conjecture. Importantly, the Veteran was not the person servicing the radar. Additionally, in July 2019 the Deputy Chief Consultant, Post Deployment Health Service provided the Veteran with an updated dose estimate of 27.32 rem's based on his duties while on active duty and his representative's claims and supporting evidence regarding his ionizing radiation exposure including the March 2019 opinion letter from Dr. Keck. However, while the Veteran's service treatment records are not available (and even they were, would not support the Veteran's claim based on the Veteran's own statements), the post-service record is negative for complaints, diagnoses, or treatment for leukemia until 2001 (see, e.g., VA treatment records dated in September 2001), and cataracts until 2006 (see, e.g., VA treatment records dated in November 2006); over four decades after the Veteran's 1956 separation from service. See Colvin, supra. The Board finds these facts provide highly probative evidence against the claims despite the fact that the Veteran's served as a radio operator while on active duty and the Board has conceded that, for the limited purpose of this decision, he had 27.32 rem's of ionizing radiation exposure while on active duty. The detailed records post-service provide particularly negative evidence against the claims. As to whether the Veteran's post-service cataracts and leukemia are due to his military service, the Board finds that the most probative evidence of record shows that his disabilities are not due to his military service despite the conceded 27.32 rem's of ionizing radiation exposure while on active duty. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, the Deputy Chief Consultant, Post Deployment Health Service, in March 2018 and July 2019 opined that it is unlikely that his ionizing radiation caused his current cataracts despite the conceded 27.32 rem's of ionizing radiation exposure while on active duty. The Board finds these opinions the most probative evidence of record because they were provided after a review of the record on appeal and/or an examination of the Veteran as well as because they are supported by citation to evidence found in the record and controlling medical literature as well as not directly contradicted by any other medical opinion. See Owens, supra; Colvin, supra. Lastly, the Board finds that it need not obtain an opinion as to whether the Veteran's post-service cataracts are due to military service because of a reason other than ionizing radiation exposure because the appellant has never made such a claim and because the record does not document complaints, diagnoses, or treatment for cataracts until decades after service. See Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that the criteria for obtaining an etiology opinion have not been met when the evidence of record does not establish that the veteran suffered an event, injury, or disease in service because no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim); Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). As to whether the Veteran's post-service leukemia is due to his military service, the Board notes that in December 2008 Dr. Alexander, who had treated the appellant for leukemia and is an oncologist, reported that "radiation emissions as a radar operator may have contributed to the development of his leukemia" and he "... may have been exposed to high doses of radiation that contributed to his diagnosis of leukemia." In this regard, the use of the term "may" in Dr. Alexander's opinion deeply limits the probative value of this statement. While it could be reasonably argued that the Veteran's contention is impossible, the Board would not suggest that it is impossible (a 0% chance) that the Veteran's exposure to these tubes caused the problems at issue. Therefore, the Board would not disagree with the statement that "radiation emissions as a radar operator may [the word "may" only indicates that it is not a 0% chance] have contributed to the development of his leukemia". The "may" standard (not impossible or not a 0% chance) is not the standard the VA uses. The fact that something "may" have caused a problem does not mean it did, in fact, cause a problem. Therefore, saying "may" says very little. The key question is if it is a least as likely as not (a 50% or greater chance) that this caused the Veteran's disabilities. Similarly, in May 2012 Dr. Alexander provided another opinion in which he stated that the Veteran's descriptions and information are consistent with other "Nike" veterans that the oncologist had treated. He referred to the 1962 paper from the U.S. Army Ordnance Missile Command and other documents as to whether x-rays were emitted from Nike radar systems. Dr. Alexander then opined that the Veteran's leukemia was related to his exposure to x-rays during service and stated that this was in accordance with the oncologist's earlier statement to the same effect. In this regard, it is again important to note that the Veteran was not involved with nuclear weapons. To associate the Veteran's exposure to tubes to Veterans who were involved with the handling of nuclear weapons the Board finds to be factually misplaced. On the other hand, in the December 2011 VHA it was opined that the Veteran's leukemia was not due to his military service. Similarly, the Deputy Chief Consultant, Post Deployment Health Service, in March 2018 and July 2019 opined that it is unlikely that his ionizing radiation caused his current leukemia and cataracts. The Board also finds that Dr. Alexander's May 2012 opinion has less probative value than the VHA and Deputy Chief Consultant, Post Deployment Health Service opinions because Dr. Alexander's opinion was based on an inaccurate factual presumption: the Veteran being exposed to x-rays during radar service when the appellant's own personal hearing testimony confirms that he never serviced the radar components in-side or out-side his van; the Deputy Chief Consultant, Post Deployment Health Service opining in March 2018 that the tubes in the cabinets below the counter did not generate any ionizing radiation because these x-rays were immediately absorbed in surrounding matter and the energy converted to heat; and the transmitting power amplifiers, which produced the ionizing radiation were located 100 feet or more from the operations van and the Veteran never worked in and around the power amplifiers. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Additionally, the Board finds Dr. Alexander's May 2012 opinion lacks medical credibility because a general statement that the Veteran's leukemia was due to his service as a radar operator because other radar operators' he treated had leukemia because of their exposure to x-rays as a radar operator is too general and inclusive to be persuasive when the details of these other radar operators' service and ionizing radiation exposure, including their dose estimates, are not specifically compared to the appellant. On the other hand, the Board finds more probative the VHA and Deputy Chief Consultant, Post Deployment Health Service opinions than that provided by Dr. Alexander because they were provided after a review of the record on appeal including Dr. Alexander's opinions and the Veteran's representative's Briefs, the appellant's statements, the medical opinions from Dr. Keck, and the reports filed by the Veteran's attorney including the 1962 paper from the U.S. Army Ordnance Missile Command. See Owens, supra; Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."). Lastly, the Board finds VHA and Deputy Chief Consultant, Post Deployment Health Service opinions to be the most probative evidence of record because they are supported by ciation to evidence found in the record and/or controlling medical literature. Id. In addition, the Board acknowledges the Veteran's submission of multiple lay statements. Specifically, in a December 2007 statement, the Veteran's wife noted she had been married to the Veteran for 21 years, which dated back to 1986 and approximately 30 years after separation from service. She asserted her belief that the Veteran's leukemia and other medical problems were caused from his occupation as a radar operator while he was in the military because neither of his parents had these disorders and both were healthy and lived to be 97. She also reported her observations of the Veteran's symptoms and quality of life before and after the diagnosis of leukemia in 2001. In a December 2007 statement, the Veteran's stepson reported knowing the Veteran since 1986 and his observations of the Veteran's decline in health since 2001. He also noted that, while working for the Veteran from 1986 to 1994, he observed the Veteran never having had any physical problem and admired his stamina. In a December 2007 statement, the Veteran's daughter-in-law reported knowing the Veteran since marrying his stepson 11 years prior, as well as her observations of the Veteran during his medical treatment. While the Veteran and his family members may sincerely believe the Veteran's leukemia and cataracts, initially shown more than 40 years after discharge from service, are related to the Veteran's service, to include exposure to radiation, they have not claimed to have the medical education or expertise necessary to provide an opinion as to the onset or etiology of leukemia and/or cataracts in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Leukemia and cataracts, are a medically complex disease processes because of their multiple possible etiologies, require specialized testing to diagnose, and manifest symptomatology that may overlap with other disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). Further, the etiology of the Veteran's leukemia is a complex medical etiological question involving internal and unseen system processes unobservable by the Veteran or family members. Accordingly, the lay assertions as to a relationship between his leukemia and cataracts, and service are of little probative value. As to the July 2010 statement from J.C.; he reported that he worked from 1954 to1975 as a radar repair and maintenance technician in military service after which he worked for Raytheon, a radar manufacture, in the same capacity. J.C. also reported, in substance, that the "Hawk" radar system lacked shielding around the glass tubes which problem was not fixed until 1970 and he developed kidney cancer because of his exposure. However, the Board finds that J.C. statement lacks value because not only is J.C. not a medical expert and cannot provide a competent and credible nexus opinion but publicly available records show that the "Hawk" system about which he talked was not placed into service until 1960, after the Veteran had already separated from military service. For reasons noted above, there are serious flaws in much of the evidence that has been submitted in support of this case. The record also shows that the Veteran and/or his representative filed with VA the following articles or treatises: 1. a document dated in March 1962 titled "The Effects of Radar on the Human Body" and published by the United States Army Ordnance Missile Command; 2. a Health Physics Society publication printed in April 2012 authored by George Cabot, PhD.; 3. a one page comment published in the American Journal of Epidemiology in 2003 titled "Cancer in Korean War Navy Technicians: Mortality Survey After 40 Years;" 4. March 2000 Position Statement of the Health Physics Society; 5. a title page and one other page of a "Nonionizing Radiation" chapter of a book; 6. in March 2019 an article titled "Emission of Parasitic X-rays from Military Radar;" in September 2016 an article titled "Bier VII: Health Risks from Exposure to Low Levels of Ionizing Radiation;" 7. an article titled "National Academy of Sciences moving towards BEIR VIII," dated September 27, 2014; and 8. an article titled "Risk of Cataracts after Exposure to Low Doses of Ionizing Radiation: A 20-Year Prospective Cohort Study among US Radiologic, published in the American Journal of Epidemiologists, Vol 160, dated July 20, 2006. The Court has said that such medical article or treatise evidence may, under certain conditions, be used to meet the requirement for a medical nexus. Wallin v. West, 11 Vet. App. 509 (1998). However, an attempt to establish a medical nexus between service and a disease or injury solely by generic information in a medical journal or treatise "is too general and inclusive." Sacks v. West, 11 Vet. App. 314, 317 (1998) (a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element). Still, medical treatise evidence can provide important support when combined with an opinion of a medical professional. Mattern v. West, 12 Vet. App. 222, 228 (1999); Rucker v. Brown,10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor's statements was "adequate to meet the threshold test of plausibility"). In this appeal, however, the Board finds that the articles and treatises submitted by the Veteran and his representative only contain generic information. This evidence is therefore only entitled to limited probative value, as it is not supported by any definitive or concrete medical opinions. While Dr. Keck cited to some of the material in support of his conclusion that the Veteran's dose estimate should be higher (which opinion was thereafter adopted in the July 2019 opinion from the Deputy Chief Consultant, Post Deployment Health Service), Dr. Keck did not provide an etiology opinion. Moreover, Dr. Alexander did not cite to any of the articles. In summary, even in light of this additional evidence, the competent evidence of record (i.e., the VHA and Deputy Chief Consultant, Post Deployment Health Service opinions) reflecting no relationship between the Veteran's current disorders (i.e., leukemia and cataracts) and his military service still outweighs the evidence in support of a nexus. See Mattern v. West, 12 Vet. App. 222, 228 (1999) (generic texts, which do not address the facts in this particular case with any degree of medical certainty, do not amount to competent medical evidence). Put another way, the Board finds that the generic/generalized evidence contained in the articles submitted by the Veteran and his representative along with the lay opinions cited above and Dr. Alexander's opinions are outweighed by the findings of the VHA and Deputy Chief Consultant, Post Deployment Health Service, which were conducted by medical professionals who reviewed the complete claims file and furnished a rationale for their conclusions that the Board finds compelling. See Nieves-Rodriguez v. Peake, No. 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Therefore, the Board finds that the most probative evidence of record shows that the Veteran's leukemia is not due to his military service despite his service as a radar operator and the conceded 27.32 rem's of ionizing radiation exposure while on active duty. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (d); also see Rabideau, supra; Owens, supra. It is again essential to note that this case is not a radiation-risk activity (as defined by statute and regulation, or by the plain facts of this case), and the radiation alleged has not been caused by (for example) a nuclear weapon, or work with a nuclear reactor, or anything remotely fissionable. It is, at best, a speculative theory of entitlement based on very limited evidence, from events from more than half a century ago, notwithstanding the many years this case has been in adjudication, and the efforts VA has undertaken to address this issue and fulfill the duty to assist notwithstanding the limited evidence that has been provided that supports this theory. This case has been in adjudication for many years. In this regard, it is imperative for the Veteran to understand that in reviewing the case as a whole, the 27.32 rem's of alleged ionizing radiation exposure was used by the Board to avoid further delay in the full adjudication of this case. We are attempting to address facts that occurred many years ago, based on very limited information most of which does not support the Veteran's claims, or the finding of 27.32 rem's of alleged ionizing radiation exposure. An estimate of how much radiation exposure the Veteran may, or may not, have been possibly exposed to while working in a van in 1955 as a radar operator is grossly speculative. As the Veteran has stated, his belief of exposure to radiation during service derived from reviewing information on the internet many years after service. He has simply attempted to reconstruct his experiences during service and lacks the technical knowledge to provide meaning to those recollected experiences as well as addressing the fact that he is ill with medical problems and he wants to know what caused these problems. The Board understands this and also understands that a finding that we do not know what caused the Veteran's leukemia unsatisfying. Based on the facts of this case, which the Board has reviewed in detail over many years, it is important for the Veteran to understand that it is very possible, if not likely, that the Veteran was not exposed to any radiation from the tubes in the van, but we simply cannot say. The Board cannot provide comprehensive detailed dose data, and detailed medical opinion, based on alleged events that occurred about 65 years ago with no service records that support, in any way, the Veteran's claim. Even if the Veteran's service records were available, they would provide no evidence to support, or refute, the Veteran's claim. These facts do not provide a basis to grant the claim for it cannot be said that the events alleged to have occurred 65 years ago are at least as likely as not (a 50% or greater chance) the cause of the Veteran's problems. No evidence the Veteran has submitted would provide a basis to meet the standard the Board must use in addressing this case. The Board has note overlooked the fact that the Veteran was service connected by the RO for a thyroid condition in September 2021. The issue of whether there was clear and unmissable error in the granting of this issue by the RO is, fortunately, note before the Board. The grant of this claim does not provide any factual determinations that Board must concede. (Continued on the next page) Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for leukemia and cataracts, despite the Veteran's service as a radar operator and the conceded 27.32 rem's of ionizing radiation exposure while on active duty. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311. In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claims, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.