Citation Nr: 21005324 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 10-04 682 DATE: February 1, 2021 ORDER Entitlement to service connection for lung cancer is denied. FINDING OF FACT The preponderance of evidence is against a finding that the Veteran’s lung cancer was the result of or otherwise associated with an in-service disease or injury, to include exposure to ionizing radiation in service, and the record conclusively establishes the disease did not manifest until more than 40 years after his separation from service. CONCLUSION OF LAW The criteria for service connection for lung cancer have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1954 to May 1963. He died in February 2010. The Appellant is his surviving spouse. She has been substituted for the Veteran for the purpose of processing his pending claim to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Appellant appeared at a Board hearing in March 2013, a transcript of which has been associated with the claims file; however, the Veterans Law Judge (VLJ) who conducted the hearing later retired from the Board. In March 2015, the Appellant provided a written statement indicating that she did not wish to have a hearing before another VLJ. In June 2020, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMPR) that vacated a May 2019 Board decision that previously denied service connection for lung cancer. In the JMPR, the parties agreed the Board provided an inadequate statement of reasons or bases for its May 2019 decision to the extent that it did not adequately address direct service connection in light of its acknowledgement of an October 1956 chest x-ray that reflects probable chronic lung disease during the Veteran’s period of active service. In October 2020, the Board remanded the issue of service connection for lung cancer and directed the Agency of Original Jurisdiction (AOJ) to obtain a direct service connection nexus opinion as permitted under the terms of the JMPR. The AOJ obtained the requested opinion in November 2020. There is nothing that suggests the November 2020 opinion is inadequate to make a fully informed decision on the issue of service connection for lung cancer, as the examiner clearly considered an accurate factual history of the claimed disability and provided a well-reasoned rationale to support her conclusion that lung cancer is less likely than not the result of or otherwise associated with the condition noted to be probable chronic lung disease during the Veteran’s period of active service. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Thus, there has been substantial compliance with the Board previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases listed in 38 C.F.R. § 3.309(a), to include malignant tumors like lung cancer, will be service connected on a presumptive basis if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Further, if a chronic disease is noted during service or during the one-year presumptive period after separation from service, a continuity of symptomatology can show chronicity and a subsequent manifestation of the same disease is presumed to be service connected. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board further notes service connection for disabilities claimed to be due to in-service exposure to ionizing radiation can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service-connected in “radiation-exposed veterans” under 38 C.F.R. § 3.309(d). See 38 U.S.C. § 1112(c). Second, service connection can be established under 38 C.F.R. § 3.303(d) 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 in 38 C.F.R. § 3.311(b)(2). Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the claimed disability was incurred during or aggravated by service without regard to the statutory presumptions and special development procedures outlined in 38 C.F.R. § 3.311. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Presumptive Service Connection – Ionizing Radiation Exposure A “radiation-exposed veteran” for presumptive service connection is a veteran who, while serving on active duty, participated in a “radiation risk activity,” which is defined as having participated in the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946 or whose service included onsite participation in atmospheric nuclear testing or for other specific sites not applicable in this case. 38 C.F.R. § 3.309(d)(3). The Veteran did not participate in a “radiation risk activity” as defined by VA regulation; therefore, the presumptive provisions of 38 C.F.R. § 3.309(d) are not applicable in this case. Special Development Procedures of 38 C.F.R. § 3.311 Lung cancer is a radiogenic disease requiring the application of the procedural advantages prescribed in 38 C.F.R. § 3.311 in the context of the claim on appeal. The record shows the AOJ has developed the service connection claim for lung cancer in accordance with 38 C.F.R. § 3.311. Special development procedures in 38 C.F.R. § 3.311 provide that 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. In all other claims, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the veteran’s exposure to radiation. These records normally include but may not be limited to the veteran’s Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran’s radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38C.F.R.§3.311(a)(2)(iii). Here, the Army Dosimetry Center notified the AOJ that no files were located documenting the Veteran’s exposure to ionizing radiation. The AOJ then obtained a radiation exposure estimate and opinion from VA’s Chief Public Health and Environmental Hazards Officer (Officer), who wrote on behalf of the VA Under Secretary for Health. The Officer is a physician and has a Master of Science in Public Health degree. He reported that the Veteran was exposed to ionizing radiation while patrolling the entire grounds of the Hanford Reservation during his assignment at that location from May 1956 to December 1957. He noted that the Veteran also reported being exposed to radiation while occupying his barracks located between two operating reactors during such service. The Officer also noted that the Veteran had a 50 pack-year history of smoking and was diagnosed with lung cancer in 2007. The Officer produced an estimate for the Veteran’s radiation exposure based on a study of radiation dose estimates from the Hanford location that analyzed radiation doses to people exposed to the area from 1945 to 1972. The Officer found that, assuming the Veteran’s exposure occurred in the most affected areas with the highest radiation doses for his entire service at Camp Hanford, the Veteran’s radiation dose would not have been higher than 1.15 Roentgen equivalent man (rem). The Officer then used the National Institute for Occupational Safety and Health’s (NIOSH) Interactive Radioepidemiolgical Program (IREP) to estimate the likelihood that the Veteran’s in-service radiation exposure was responsible for his lung cancer. In using the IREP, the Officer assumed that the Veteran’s entire 1.15 rem exposure occurred as a single dose during his first year at Camp Hanford in evaluating the probability of causation. The IREP calculated a 99-percentile value for the probability of causation of 2.09 percent. Based on this estimate of causation, the Officer concluded it is unlikely that the Veteran’s lung cancer can be attributed to ionizing radiation exposure during service. The Officer’s opinion was then sent to the Director of Compensation and Pension Service (Director). The Director noted the Officer’s findings in regard to estimated radiation exposure and the IREP estimate as to the probability of causation of the Veteran’s cancer by such radiation exposure. The Director also noted that the Veteran was 20 years old when he was assigned to Camp Hanford where he was exposed to radiation, that he denied having a family history of cancer or leukemia, and that he was diagnosed with lung cancer 41 years after his in-service radiation exposure. The Director further noted that the Veteran worked as a heavy equipment mechanic after discharge ant that he had 50-pack year smoking history prior to quitting in 2007. Based on these factors, the Director concluded that it is less likely than not that the Veteran’s lung cancer is the result of his in-service exposure to ionizing radiation. The Board acknowledges that the Veteran’s former representative disagreed with the estimate of radiation exposure provided by the Officer. When a claimant submits an estimate of radiation dosage from a credible source, defined as a person or persons certified by an appropriate professional body in the field of health physics, nuclear medicine, or radiology based on analysis of the facts and circumstances of the particular claim, VA has a duty to refer the claim to an independent expert to reconcile the difference between such estimate and one obtained by VA. 38 C.F.R. § 3.311(a). In this case, the representative submitted an internet article and an unclassified report regarding radiation incidents at Camp Hanford, but these submissions do not address the specific facts of the Veteran’s case. Thus, the submissions are not evidence sufficient to establish that the Veteran’s lung cancer is due to in-service radiation exposure. Further, the submissions do not include estimates of the Veteran’s radiation dosage necessitating referral to an independent expert to verify VA’s estimate of his radiation exposure. Id. In addition, the representative claimed that the Officer’s estimate was based on civilians that were not serving or living at Camp Hanford. Yet, the Officer indicated that his estimate was made under the assumption that the Veteran was in areas subject to the highest radiation doses for the entirety of his service at Camp Hanford. The Board also notes that the representative claimed that the Officer was not qualified to offer an opinion because he is not a radiation oncologist or trained in nuclear medicine; however, the Board finds that the Officer was qualified to offer the requested opinions. In this regard, the Officer is a physician and has a Master of Science in Public Health degree and has been specifically assigned to provide such opinions. In addition, the Board is entitled to presume the competence of a VA examiner. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (explaining that “the Board is entitled to assume the competence of a VA examiner,” and the appellant bears the burden of rebutting the Board’s presumption of competence); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (“Absent some challenge to the expertise of a VA expert, [there is] no statutory or other requirement that VA must present affirmative evidence of a physician’s qualifications in every case as a precondition for the Board’s reliance upon that physician’s opinion.”). The former representative’s statements do not rebut this presumption. As a result, the Board finds service connection is not warranted under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311. Direct Service Connection There is no competent evidence that suggests the Veteran’s lung cancer is the direct result of his in-service exposure to ionizing radiation, as this is a complex medical question that is beyond lay observation. The Board also finds the preponderance of evidence is against finding a nexus between lung cancer and a notation of “probable chronic lung disease” at the time of an in-service October 1956 chest x-ray. As previously noted, the Board directed the AOJ to obtain an opinion in this regard in its October 2020 remand of the issue on appeal. In November 2020, a VA examiner provided an opinion indicating the Veteran’s lung cancer was less likely than not the result of the October 1956 notation of “probable chronic lung disease” explaining those findings are consistent with atelectasis and pulmonary fluid, which were acute and transitory complications of an in-service peritonitis/appendicitis with ruptured abscess that eventually resolved. The November 2020 VA examiner noted the Veteran was diagnosed with acute peritonitis in May 1956 and underwent an exploratory laparotomy with appendectomy due to perforated appendix with rupture of appendiceal abscess with clinical notes showing the Veteran’s recovery was lengthy and complicated by post-operative wound infection and then the formation of pulmonary atelectasis in the right lung base. The November VA examiner 2020 further noted pulmonary atelectasis persisted in follow-up chest x-ray studies, to include the October 1956 chest x-ray that includes the notation of “probable chronic lung disease.” Yet, the November 2020 VA examiner explained the Veteran had a negative chest x-ray at the time of his April 1957 exit from Camp Hanford with no symptoms at his separation from service in 1963 with subsequent negative chest x-rays until he was diagnosed with chronic obstructive pulmonary disease in 1986. As a result, the November 2020 VA examiner concluded the Veteran’s lung cancer was not the result of or otherwise associated with the notation of “probable chronic lung disease” in service, weighing against an award of service connection on a direct basis in this case. Chronic Disease Presumptions As a final matter, the Board notes the chronic disease presumptions outlined in 38 C.F.R. § 3.307(a)(3) are not for application in this case because the Veteran’s lung cancer did not manifest until 2007, which is more than 40 years after his separation from service in May 1963. See also 38 C.F.R. § 3.309(a) (listing malignant tumors as a chronic disease for the purpose of presumptive service connection under 38 C.F.R. § 3.307(a)(3)). Further, the November 2020 VA examiner’s opinion adequately explains the notation of “probable chronic lung disease” was not a manifestation of lung cancer, rendering the related concept of a continuity of symptomatology inapplicable as well. See Walker, supra. Conclusion In sum, the Board finds the preponderance of evidence is against an award of service connection for lung cancer in this case. As noted above, service connection is not warranted on a presumptive basis because the Veteran did not participate in a “radiation risk activity” as defined by VA regulation and his lung cancer did not manifest until more than 40 years after his separation from service. Service connection is also not warranted under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311 or on a facts-found basis. The only competent evidence addressing the likelihood that the Veteran’s lung cancer resulted from in-service exposure to ionizing radiation is the Chief Public Health and Environmental Hazards Officer’s opinion, which indicates it is unlikely lung cancer resulted from radiation exposure based on the facts and circumstances present in this case. The preponderance of evidence is also against a finding that the Veteran’s lung cancer is the result of or otherwise associated with the notation of “probable chronic lung disease” in service in October 1956, as the November 2020 VA examiner’s opinion clearly explains this notation was consistent with acute and transitory complications of peritonitis/appendicitis with ruptured abscess that eventually resolved as shown on subsequent chest x-rays. As the preponderance of evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection for lung cancer must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.