Citation Nr: 21010771 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 12-26 299 DATE: February 25, 2021 ORDER Service connection for clear cell chondrosarcoma in the right hip (right hip disability), as due to non-ionizing radiation exposure, is granted. Service connection for clear cell chondrosarcoma in the right femur (right leg), as due to non-ionizing radiation exposure, is granted. Service connection for clear cell chondrosarcoma in the right humerus (right arm), as due to non-ionizing radiation exposure, is granted. Service connection for a peripheral vascular disease (PVD), including as due to non-ionizing radiation exposure, is dismissed. FINDINGS OF FACT 1. The Veteran served from December 1966 to December 1969 and was exposed to non-ionizing radiation during service, not ionizing radiation. 2. The Veteran has a current disability of clear cell chondrosarcoma in the right hip. 3. Symptoms of the clear cell chondrosarcoma in the right hip were continuous after service separation. 4. The Veteran has a current disability of clear cell chondrosarcoma in the right femur. 5. Symptoms of the clear cell chondrosarcoma in the right femur were continuous after service separation. 6. The Veteran has a current disability of clear cell chondrosarcoma in the right humerus. 7. Symptoms of the clear cell chondrosarcoma in the right humerus were continuous after service separation. 8. Per the February 2021 third party correspondence, prior to the promulgation of a Board decision in the present appeal, the Veteran asked to withdraw the appeal for service connection for PVD. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for clear cell chondrosarcoma in the right hip (right hip disability), as due to non-ionizing radiation exposure, have been met. 38 U.S.C. §§ 1110, 1112, 1154(b), 5103, 5103A, 5121A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for clear cell chondrosarcoma in the right femur (right leg disability), as due to non-ionizing radiation exposure, have been met. 38 U.S.C. §§ 1110, 1112, 1154(b), 5103, 5103A, 5121A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for clear cell chondrosarcoma in the right humerus (right arm disability), as due to non-ionizing radiation exposure, have been met. 38 U.S.C. §§ 1110, 1112, 1154(b), 5103, 5103A, 5121A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. The criteria for the withdrawal of the appeal for service connection for PVD, including as due to non-ionizing radiation exposure, have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1966 to December 1969. These matters came before the Board of Veterans’ Appeals (Board) on appeal from two separate rating decisions of the Lincoln, Nebraska, Regional Office (RO), also known as the Agency of Original Jurisdiction (AOJ), of the Department of Veterans Affairs (VA). A September 2011 RO decision denied the Veteran’s claims of service connection for a right hip disorder and right leg disorder. An April 2014 RO decision denied the Veteran’s claim of service connection for a right arm disorder. In July 2015, numerous issues were brought before the Board. The Board remanded the instant issues of service connection for a right hip disorder, right leg disorder, and right arm disorder in order to obtain VA examinations for each claim. VA examinations were conducted in October 2015 and a supplemental statement of the case (SSOC) was issued in December 2015. In September 2016, the Board again remanded the issues of service connection for a right hip disorder, right leg disorder, and right arm disorder. The Board found that the October 2015 VA examinations were inadequate and remanded the issues in order to obtain new VA examinations for all three issues. VA examination addendum opinions were issued in September 2016. A SSOC was issued in October 2016. The Veteran appealed the July 2015 Board Decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In a March 2017 memorandum decision, the Court (CAVC) affirmed issues adjudicated in the July 2015 Board Decision that are not currently before the Board. The Court explained that it could not address the Veteran’s argument that the October 2015 VA examinations of the right hip, right leg, and right arm were inadequate because the examinations postdate the July 2015 Board decision on appeal. The Court noted that the Veteran may challenge the adequacy of the October 2015 VA examinations as part of the Board remand proceedings and, should the Veteran receive a final Board decision with which he is not satisfied as to the remanded claims, he is free at that time to appeal that Board decision to the Court. The instant matters were before the Board again in February 2018. The Board remanded the issues because the September 2016 VA examination addendum opinions do not satisfy the September 2016 Board remand directives requiring that a VA examination be conducted. The Board remanded again to obtain the VA examinations and opinions required under Stegall v. West, 11 Vet. App. 268, 271 (1998). VA examination reports and opinions were submitted to the record in December 2018. In August 2019, the Board remanded the issues again as the AOJ did not issue a SSOC in response to the February 2018 Board remand and December 2018 VA examinations. See Stegall, 11 Vet. App. at 271. A SSOC was issued in August 2020. Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may 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. See 38 C.F.R. § 3.303(d). The Veteran is currently diagnosed with clear cell chondrosarcoma (bone tumors), which is considered a “chronic” disease under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as cancerous tumors, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While there are presumptive service connection provisions for a disability attributable to radiation exposure during service, these are not applicable in this case as this Veteran was not in fact exposed to ionizing radiation. See 38 U.S.C. § 1112(c)(3); 38 C.F.R. § 3.309 (d)(3) (presumptive service connection for specified diseases); 38 C.F.R. § 3.311(b)(2) (listing “radiogenic” diseases for which an ionizing-radiation-exposed veteran may be service connected). In this case, the Veteran contends that he was exposed to radiation in service when he was operating radar equipment for over two years and that a beam of radiation hit him on the right side of his body in service. The Veteran served from December 1966 to December 1969. The Board finds, and evidence submitted to the record by the Veteran supports, that radiation associated with radar and microwave radiation are not characterized as ionizing radiation. See September 2015 Correspondence (Long-term Exposure to Microwave Radiation Provokes Cancer Growth: Evidence from Radars and Mobile Communication Systems). Thus, the Veteran was exposed to non-ionizing radiation, not ionizing radiation. 1. Service Connection for a Right Hip Disorder 2. Service Connection for a Right Leg Disorder 3. Service Connection for a Right Arm Disorder The Veteran contends that he was exposed to radiation in service when he was operating radar equipment for over two years and that a beam of radiation hit him on the right side of his body in service. The Veteran claims that this in-service exposure caused the current right hip, right leg, and right arm disabilities. After a review of the evidence of record, both lay and medical, the Board finds that the Veteran has current disabilities of clear cell chondrosarcoma (a form of cancer) in the right hip, right femur, and right humerus. The Board also finds that the evidence is at least in equipoise on the question of whether symptoms of clear cell chondrosarcoma in the right hip, leg, and arm were continuous after service separation to warrant presumptive service connection for a “chronic” disease of cancer. While the first report of clear cell chondrosarcoma is in March 1980 private treatment records, approximately 10 years after service separation, the Veteran has credibly and repeatedly reported that he experienced continuous symptoms after service separation, beginning in 1980. The Veteran has submitted numerous medical articles about radiation and clear cell chondrosarcoma, explaining that this is a rare cancer with slow growth and symptoms taking several years to manifest physically. See generally, March 1980 Private Treatment Records; May 1980 Private Treatment Records; November 1980 Private Treatment Records; June 2011 Application for Compensation or Pension; June 2011 Statement in Support of Claim; September 2011 Notice of Disagreement (The Veteran reported that he did not seek in-service treatment because he was not advised to and he was far away from the base); December 2011 Correspondence (The Veteran submitted photographs of himself during service with radar equipment); February 2013 Private Treatment Records; October 2015 VA Examination; March 2016 Correspondence; September 2016 VA Examination; November 2016 Private Treatment Records; March 2018 VA Examination; December 2018 VA Examination; August 2020 VA Examination. The Board resolves reasonable doubt to finds that the Veteran experienced continuous post-service symptoms of clear cell chondrosarcoma in the right hip, leg, and arm were after service separation. Based on the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) for clear cell chondrosarcoma in the right hip, right femur, and right humerus, namely, continuous symptoms since service separation, have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As presumptive service connection is being granted for all three claims under 38 C.F.R. § 3.303(b), there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. Even though the record contains VA examination opinions and private opinions, these opinions pertain only to the theory of direct service connection (38 C.F.R. § 3.303(d)), so is not probative in determining presumptive service connection based on continuous symptoms since service separation (38 C.F.R. § 3.303(b)) associated with the right hip, leg, and arm disorders. 4. Service Connection for PVD is Dismissed Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 20.204. (Continued on the next page)   Per the February 2021 third party correspondence, the Veteran asked to withdraw the appeal for service connection for peripheral vascular disease, including as due to non-ionizing radiation exposure. There remain no allegations of errors of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review this issue, and it must be dismissed. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.