Citation Nr: 21005590 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 18-00 338A DATE: February 2, 2021 ORDER Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record fails to demonstrate that the Veteran’s prostate cancer was due to his military service, to include exposure to ionizing radiation. 2. The Veteran died in July 2017, and his death certificate listed the principal cause of death as prostate cancer. 3. At the time of the Veteran’s death, he was service connected for a left index finger fracture. 4. A claim for service connection for prostate cancer was pending at the time of the Veteran’s death in July 2017. 5. The preponderance of the evidence of record fails to demonstrate that a service-connected disability caused or substantially contributed to the Veteran’s death. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107, 5121; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.1000. 2. A service-connected disability did not cause death or contribute substantially or materially to the Veteran’s death. 38 U.S.C. §§ 1110, 1112, 1310, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1963 to September 1967. Unfortunately, he passed away in April 2017. The appellant is his surviving spouse, and the substituted claimant for this appeal. Although the Regional Office (RO) never notified the appellant that she was properly substituted, she was given the appearance she was substituted; thus, the RO effectively substituted her in place of the deceased Veteran. She submitted a claim for DIC and death pension in June 2017. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office. In February 2020, the Board remanded for further development, to include forwarding the Veteran’s claim file to the VA Under Secretary for Benefits for appropriate action consistent with 38 C.F.R. § 3.311(a)(2)(iii) and 3.311(c). A dose estimate was obtained, and an advisory medical opinion was elicited from the Director, Post-9/11 Environmental Health Program, written by a Health Physicist. The Board finds substantial compliance with the remand directives. In July 2020, after further development, the RO issued a Supplemental Statement of the Case (SSOC) denying the remanded claims. This appeal has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). Cause of Death Dependency and Indemnity Compensation (DIC) may be awarded to a veteran’s spouse for death resulting from a service-connected or compensable disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. The veteran’s death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran. 38 C.F.R. § 3.312(a). To be considered a principal cause of death, a service-connected disability must have been singly or jointly with some other condition the immediate or underlying cause of death or have been etiologically related to the cause of death. In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c); Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran’s death may be demonstrated by showing that his death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service Connection Service connection may be granted for disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires the following: (1) existence of a current disability, (2) existence of a disease or injury during active duty service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established for a current disability based on a presumption that certain chronic diseases, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. § 1112, 1113; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309. If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. § 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1131 (Fed. Cir. 2013). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Additionally, VA regulations provide for service connection for radiation exposed veterans based on exposure to ionizing radiation. 38 C.F.R. § 3.303(d), 3.311. Prostate cancer is among the radiogenic diseases, as defined by 38 C.F.R. § 3.311(b)(2)(xxiii). Service connection for a disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997). First, there are certain types of cancers that are presumptively service-connected specific to radiation-exposed veterans. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). Second, “radiogenic diseases” may be service-connected pursuant to 38 C.F.R. § 3.311. Third, direct service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. Certain specified disabilities becoming manifest in a “radiation-exposed veteran” shall be service connected. See 38 U.S.C. § 1112(c)(1); 38 C.F.R. § 3.309(d)(1). The term “radiation-exposed veteran” means a veteran who participated in a “radiation-risk activity.” See 38 U.S.C. § 1112(c)(3)(A); 38 C.F.R. § 3.309(d)(3)(i). If a claimant does not qualify as a “radiation-exposed veteran” under 38 C.F.R. § 3.309(d) and/or does not suffer from one of the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special developmental procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. In this case, the Veteran has not asserted that he was exposed to radiation though one of the cited “radiation-risk activities,” but rather, that he was exposed to ionizing radiation in service working with radioactive tubes at Keesler Air Force Base and as a Weapons Handler at Manzano Base, New Mexico. Pursuant to 38 C.F.R. § 3.311, when a claimant contends that a radiogenic disease which first became manifest after service, though not to a compensable degree within any other applicable presumptive period, is the result of exposure to ionizing radiation in service, an assessment is made as to the size and nature of the radiation dose. 38 C.F.R. § 3.311(a). Except as otherwise provided, the radiogenic disease must become manifest five years or more after exposure. 38 C.F.R. § 3.311(b)(5). If these threshold requirements are met, an assessment as to the size and nature of the radiation dose must be made. 38 C.F.R. § 3.311(a)(1). 38 C.F.R. § 3.311(a)(2)(iii) requires that, in claims not based upon participation in atmospheric nuclear testing or Hiroshima and Nagasaki occupation, dose data normally includes, but may not be limited to, the veteran’s Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), service treatment records and other records which may contain information pertaining to radiation exposure in service. All such records must then be forwarded to the Under Secretary for Health, who will be responsible for the preparation of a dose estimate. 38 C.F.R. § 3.311(a)(2)(iii). Finally, if exposure to ionizing radiation is identified, the Veteran’s claim must then be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). 1. Entitlement to service connection for prostate cancer Prior to his passing, the Veteran contended entitlement to service connection for prostate cancer as a result of his exposure to ionizing radiation in-service. See VA 21-526 EZ, July 2016. The appellant has largely reiterated the Veteran’s contentions that his prostate cancer was a result of his exposure to ionizing radiation in relation to performance of his in-service duties as a Weapons Handler at Manzano Base and also as a Bench Stock Attendant at Keesler Air Force Base, working with radioactive tubes. See Correspondence, October 2020. At Manzano Base, the Appellant contends atomic bombs are stored in bunkers in the mountains, and the Veteran worked with loading and transporting the bombs. The Veteran’s death certificate shows that he died in April 2017, and the direct cause of death was prostate cancer. He was diagnosed with prostate adenocarcinoma in 2014. Furthermore, with regard to the Veteran’s assertions that his in-service duties included working around radioactive devices, the Board finds that such is consistent with the evidence of record and finds no reason to question his assertions. In this regard, his service treatment records reflect that in May 1964, in response to the question “have you ever worked with radioactive substances,” the Veteran noted “I have worked with radioactive tubes, but they are very low on radioactivity.” The medical examiner noted the Veteran “has worked with radioactive tubes. Safety measures used, no comp, no seq.” The Veteran’s Record of Occupational Exposure to Ionizing Radiation (DD Form 1141) record an accumulated total dose of zero for alpha-beta gamma radiation, measured by film badge, for the two documented timeframes of April 1967 to May 1967 and May 1967 to June 1967 at Manzano Base, New Mexico. During his August 1967 separation examination, in response to the question “have you ever worked with radioactive substances,” the Veteran’s response was “classified.” However, in response to the occupational radiation exposure dose inquiry for the Veteran, the Chief, Medical Radiation Health Operations of the Air Force Medical Support Agency, found no external or internal radiation exposure for the Veteran. See Correspondence, June 2017. The Veteran’s DD Form 1141 was addressed, noting that the DD 1141 method of measuring exposure was only capable of measuring unlikely occurrences of high radiation exposure. He noted the DD 1141 was provided, but likely referred to a DT-60/PD badge. Historically, many Air Force personnel at nuclear capable units were issued DT-60 accident dosimeters to their workers for medical readiness purposes to measure exposure in unlikely occurrence of a high radiation exposure. The Air Force Safety Center is unaware of any event where these devices were used to establish radiation exposure for individuals and the device was not sensitive to occupational-level exposures. In addition, records of exposures recorded by these devices were of no benefit today. In February 2020, the Board remanded the claims for further development. Pursuant to the remand directives, the claim was referred for a radiation dose estimate and an advisory opinion as to whether sound scientific and medical evidence supports the conclusion that it is at least as likely as not that the Veteran’s prostate cancer resulted from exposure to radiation in service. In July 2020, an advisory medical opinion was provided from the Director, Post-9/11 Environmental Health Program (10P4Q) for the Under Secretary for Health that it was unlikely that prostate cancer was caused by exposure to ionizing radiation while in military service since the Veteran’s assigned total ionizing radiation dose (2.5 rem) did not exceed 100 mSv (10 rem) above natural background. The medical opinion was prepared by a Health Physicist, degreed in B.S., RRPT, and AMAAHP and reviewed by the Director, degreed in MD, MPH, and FAAFP. With regard to the possible effects of the Veteran’s total effective dose equivalent, the Director noted that the Health Physics Society, in a May 2016 position statement, stated that “[t]he average annual equivalent dose from natural background radiation in the United States is about 3 mSv [0.3 rem]. A person might accumulate an equivalent dose from natural background radiation of about 50 mSv [5 rem] in the first 17 years of life and about 250 mSv [25 rem] during an average 80-year lifetime. Substantial and convincing scientific data show evidence of health effects following high-dose exposures (many multiples of natural background). However, below levels of about 100 mSv [10 rem] above background from all sources combined, the observed radiation effects in people are not statistically different from zero.” It was noted that there was no record of radiation dose found at the Department of the Air Force, Air Force Medical Support Agency, because the Veteran was not monitored for occupational exposure to ionizing radiation. The opinion noted that if it was assumed that he was occupationally exposed, because the claim states he was a Weapons Handler and also worked with tubes containing radioactivity, the following is true: “when an occupationally exposed worker is not expected to receive a radiation dose exceeding 1/10 of the annual limit of 5 rem per year (0.5 rem), monitoring is not required. We can assign a dose of 2.5 rem (total effective dose equivalent) to the Veteran, which is 0.5 rem per year x 5 calendar years of active service, 1963-1967. This assigned dose gives benefit of the doubt to the Veteran regarding the claim of radiation exposure versus the United States Air Force’s lack of monitoring records.” The Director noted a review of the Veteran’s assertions before his death and the contentions of the Appellant regarding the Veteran’s exposure to ionizing radiation. Additionally, he noted a review of the Veteran’s military records showed he was a Bench Stock Room Attendant from January 1964 to January 1966 at Keesler Air Force Base and a Weapons Handler at Manzano Base, New Mexico from January 1966 to September 1967. The record also contained the Veteran’s DD Form 1141, recording an accumulated total dose of zero for alpha-beta gamma radiation. The Director further acknowledged the Veteran’s diagnosis of prostatic adenocarcinoma in November 2014 and his death in April 2017 from prostate cancer. The Veteran was 20 years old when initially exposed to ionizing radiation and prostate cancer was reported 49 years after exposure. The Veteran was a Caucasian male. Medical records reveal he was a former smoker, having smoked 1-½ packs per day for a period of four years. The Veteran had a positive family history for cancer, his maternal grandmother with cancer (unknown type) and his mother with breast cancer. No post-service radiation exposure was noted. Prostate cancer is not a disease listed under 38 C.F.R. § 3.309(d). In July 2020, based on the scientific evidence referenced in the memorandum from the Director, Post-9/11 Environmental Health Program and a review of the evidence in its entirety, the Executive Director, Compensation Service opined that there was no reasonable possibility that the Veteran’s prostate cancer could be attributed to his ionizing radiation exposure during military service. The Board affords great probative weight to the July 2020 opinion from the Director, Post-9/11 Environmental Health Program because it was based on a review of the relevant records, to include the Veteran’s lay statements concerning his in-service exposure, dose estimates, and a review of medical literature. The Director provided excerpts from relevant medical literature to support the conclusion reached. The Director also explained that the Veteran’s total effective dose equivalent was likely 2.5 rem based on the fact that he was not monitored for exposure to ionizing radiation and he served 5 years. Additionally, the effects from dosage levels below 10 rem above background from all sources combined were not statistically different from zero. The Board carefully reviewed the correspondence received from the appellant since her substitution. Specifically, the correspondence received in September 2020. In the correspondence, she asserted that the Veteran’s familial medical history regarding cancer is incorrect. She noted that the Veteran’s mother did not have breast cancer, like was noted in private oncology records from December 2014. See Physician Services Oncology, December 2014. In addition, contrary to medical documentation, she asserted the cause of death of the Veteran’s maternal grandmother was not cancer related. See Archibold Oncology, December 2016. She further noted that, in all probability, the Veteran had prostate issues prior to his diagnosis in 2014. Therefore, decreasing the time between radiation exposure and diagnosis. Importantly, the appellant offered no probative evidence to contradict the Veteran’s own reports of his family history of cancer made during the course of his cancer treatment. His statements to clinicians relating his own family history made in conjunction with his cancer treatment are more probative than the statements made by the appellant without corroborating evidence. Further, the appellant has not been shown to be competent to diagnose a prostate disability prior to the Veteran’s clinical diagnosis. She has not been shown to have the requisite medical expertise to determine the date of onset of the Veteran’s prostate cancer. The Board has considered the arguments set forth by the Veteran and the appellant that the Veteran’s prostate cancer was due to or caused by his in-service exposure to ionizing radiation. Having reviewed these arguments and contentions, the Board does not doubt either the Veteran’s or the appellant’s sincerity in those beliefs; however, neither have been shown to possess the specialized knowledge and training necessary to render an opinion as to the likely dosage of radiation sustained in service or as to the likely effect of such dosage. As such, the lay statements and contentions in this regard are not considered competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). There contentions, therefore, are not probative as to the matter and do not weigh against the probative value of the July 2020 Director’s opinion. As such, the most probative evidence of record indicates that it is less likely than not that the Veteran’s prostate cancer was due to his in-service exposure to ionizing radiation. Prostate cancer is not a cancer subject to service connection on a presumptive basis under 38 C.F.R. § 3.309(d). Therefore, service connection for prostate cancer under the provisions of 38 C.F.R. § 3.303(d), 3.309(d) and 3.311 is not warranted. Finally, the Board must also consider whether service connection can otherwise be established. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (the fact that a veteran may not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection on a direct basis). However, in this case, the Veteran’s service treatment records contain no complaints of prostate problems, and neither he nor the appellant alleged that his prostate cancer began during his active duty service. As noted above, prostate cancer was diagnosed in 2014, approximately 47 years after his discharge from active duty. Furthermore, the Board notes that neither the Veteran when he was still alive, nor the appellant, have alleged that his prostate cancer was due to any aspect of his active duty service other than his in-service exposure to ionizing radiation. The Board is sympathetic to the appellant’s loss and is appreciative of the Veteran’s honorable service. Nevertheless, the probative evidence of record fails to demonstrate that the Veteran’s prostate cancer was related to his military service, to include exposure to ionizing radiation. In summation, the preponderance of the evidence is against a finding that the Veteran’s prostate cancer was related to his military service, to include exposure to ionizing radiation. Therefore, service connection for prostate cancer is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for the Veteran’s cause of death To be considered a principal cause of death, a service-connected disability must have been singly or jointly with some other condition the immediate or underlying cause of death or have been etiologically related to the cause of death. The Certificate of Death lists the principal cause of death as prostate cancer. As noted above, the Veteran’s prostate cancer is not related to ionizing radiation exposure in service. The only probative nexus evidence is against the claim. Specifically, the Director’s opinion regarding the lack of connection between ionizing radiation and the Veteran’s prostate cancer is highly probative, as it is based on the Veteran’s relevant history, includes consideration of his lay statements, and is well-reasoned. Service-connection for prostate cancer is not warranted, and thus, the Board cannot find that a service-connected disability caused or substantially contributed to his death. Again, in making its determinations in this case, the Board has carefully considered the appellant’s contentions with respect to the Veteran’s prostate cancer. The appellant’s assertions have been considered; however, her contentions are outweighed by the findings of the Director, Post-9/11 Environmental Health Program because the Director has the medical training needed to provide an opinion regarding the relationship between the Veteran’s prostate cancer and in-service radiation exposure. (Continued on the next page)   As the preponderance of the competent evidence fails to show that a service-connected disability caused or substantially contributed to his death, service connection for the cause of the Veteran’s death is denied. 38 U.S.C. § 5107(b). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Krista Johnson, Associate 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.