Citation Nr: 21010823 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-20 160 DATE: February 25, 2021 ORDER Entitlement to service connection for colon cancer, to include as due to exposure to ionizing radiation and/or exposure to rocket fuel fumes, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s colon cancer is etiologically related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for colon cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (b); 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 served on active duty from June 1961 to April 1965. This matter comes before the Board of Veterans’ appeals (Board) from a January 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge (VLJ) in May 2019; a transcript of which has been associated with the record. The matter was previously remanded by the Board in October 2019 decision for additional development and has now returned for further appellate review. Service Connection Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by several different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected, specific to radiation-exposed Veterans. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). Diseases presumptively service connected for radiation-exposed Veterans are listed under 38 C F R § 3.309 (d)(2). Second, when a “radiogenic disease” first becomes manifest after service, and it is contended that the disease resulted from exposure to ionizing radiation during service, various development procedures must be undertaken in order to establish whether or not the disease developed as a result of exposure to ionizing radiation. 38 C.F.R. § 3.311 (a)(1). A radiogenic disease is defined at 38 C.F.R. § 3.311 (b)(2). Third, even if the claimed disability is not listed as a presumptive disease under 38 C.F.R. § 3.309 (d) or as a radiogenic disease under 38 C.F.R. § 3.311, service connection must still be considered on a direct basis under 38 C F R § 3.303 (d) in order to determine whether the disease diagnosed after discharge was incurred during active service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Entitlement to service connection for colon cancer, to include as due to exposure to ionizing radiation. The Veteran is seeking service connection for colon cancer, which he contends is etiologically related to ionizing radiation exposure, or alternatively exposure to rocket fuel fumes, received during active duty service. Service connection for a disability that is claimed to be caused by exposure to ionizing radiation can be established by several alternative methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer (including cancer of the colon) that are presumptively service connected in radiation-exposed veterans, so long as the cancer manifests to a degree of 10 percent or more within one year. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). Second, “radiogenic diseases” (including colon cancer) may be service-connected pursuant to consideration of the factors listed in 38 C.F.R. § 3.311 (e). Third, 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. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A “radiation-exposed veteran” is defined by 38 C.F.R. § 3.309 (d)(3) as a veteran who, while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity. “Radiation-risk activity” is defined to mean on-site participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309 (d)(3)(i), (ii). One of the diseases specific to radiation-exposed veterans is metastatic colon cancer. 38 C.F.R. § 3.30 (d)(2). The regulation 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease, such as metastatic colon cancer, first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. In all other claims involving radiation exposure, a request will 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. For all claims where radiation exposure during service is claimed and a radiogenic disease is diagnosed after service, 38 C.F.R. § 3.311 compels the forwarding of all records pertaining to the Veteran’s radiation exposure in service to the Under Secretary for Health. The Under Secretary of Health is responsible for the preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311 (a)(2)(iii). If a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee, 34 F.3d at 1043-1044. Thus, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being causally related to exposure to ionizing radiation but must also determine whether his disability is otherwise the result of active service. VA treatment records reveal that the Veteran has sought treatment for colon cancer. However, the Veteran does not allege that he experienced symptoms of nor sought treatment for colon cancer while on active duty service. In this case, the Veteran was diagnosed with colon cancer in 1984, 19 years after his discharge from service. Colon cancer is presumptively linked to ionizing radiation exposure by 38 C.F.R. §§ 3.309 (d) and 3.311. Therefore, the question on appeal is whether the Veteran was exposed to ionizing radiation during service and whether that exposure resulted in the Veteran’s colon cancer. First, as stated above, under the presumptive provisions of 38 C.F.R. § 3.309 (d), colon cancer is among the diseases listed for diseases specific to radiation-exposed veterans. See 38 C.F.R. § 3.309 (d)(2). However, the Veteran does not meet the definition of a radiation-exposed veteran for these purposes because he did not participate in a radiation-risk activity. The evidence, including the Veteran’s statements and service records, do not show participation in nuclear bomb testing, service during an earlier time period in Japan during the atomic bomb use, or service in any of the specific locations set forth in the regulations. See 38 C.F.R. § 3.309 (d)(3). Thus, service connection is not warranted under these presumptive provisions. Next, service connection is warranted under 38 C.F.R. § 3.311 for claims based on exposure to ionizing radiation. These provisions were followed as the Veteran’s in-service radiation dose assessment was obtained, and the case was thereafter referred for appropriate review under 38 C.F.R. § 3.311 (c). The Veteran has asserted that he was exposed to radiation while working as a missile maintenance technician. The Veteran also asserts that he may have had additional exposure as a result of a fire in a missile silo. Alternatively, the Veteran asserts that his colon cancer may be etiologically linked to exposure to rocket fuel fumes. A March 2010 letter from the Air Force Medical Support Agency Office of the Surgeon General indicates that documentation of the Veteran’s radiation exposure is not available, likely due to records not being forwarded to the central repository, but that the Air Force Safety Center (AFSC) estimates that the Veteran had potential to be exposed to approximately 170 mrem of radiation due to his MOS as a missile mechanic. In August 2015, the Veteran submitted a private medical opinion from Dr. JDB, a physician certified in Internal Medicine, Endocrinology & Metabolism. The physician opined that the condition was “more likely than not” related to exposure to ionizing radiation while on active duty service. By way of rationale, the physician stated that the Veteran had “almost daily contact and close proximity to radiation-emitting ICBM missiles with nuclear warheads during his three year service as a missile maintenance technician”, possessed increased susceptibility to ionizing radiation due to his young age at the time of exposure, that the condition was “consistent with medical experience with late-onset radiation-induced cancers”, and that the Veteran demonstrated “his inherent susceptibility to the harmful effects of ionizing radiation by developing a neoplastic nodule on his thyroid gland.” In November 2016, the Director of the Post-9/11 Environmental Health Service issued a memorandum after a thorough review of the Veteran’s file. He reiterated that a request to the AFSC revealed a potential for exposure to ionizing radiation based on the Veteran’s duties as a missile maintenance technician and noted an estimated total effective dose equivalent to 170 mrem. The memorandum also discussed the Veteran’s noted tobacco use, amounting to 50 packs of cigarettes per year prior to 2004, and the Veteran’s family history of cancer. Additionally, the Director reviewed an August 2015 medical opinion submitted by the Veteran from Dr. JDB. Though the 2015 opinion concluded that the Veteran developed stage IV colon cancer due to his exposure to ICBM missiles, the Director expressed disagreement with this conclusion. He noted that the 2015 opinion made no reference to the dose estimate of 0.17 rem and the dose is the primary factor in potential causation of a disease that might be attributed to radiation exposure. The Director went on to cite The Health Physics Society which in a position statement PS010-3, Radiation Risk in Perspective, stated, “The 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.” The Director concluded that since the Veteran’s lifetime total radiation dose did not exceed 0.1 Sv (10 rem) above natural background, it was unlikely that colon cancer was caused by exposure to ionizing radiation during service. The Veteran underwent a VA examination in September 2020. The examiner, a board-certified Family Nurse Practitioner, opined that the “Veteran’s colon cancer was more likely than not due to exposures related to military service.” By way of rationale, the examiner stated that recent research supported that the carcinogenic effects of radiation are late effects that can be caused by low level radiation exposure. Specifically, the examiner stated that “epidemiological studies suggest that evidence of cancer risk increases at the lowest dose value of 10-50 mSv (1000-5000 mrem) for an acute exposure, and 50-100 mSv (5000-10,000 mrem) for prolonged exposure. The risk for radiation-induced cancer is higher the younger one is exposed.” The examiner discussed a single study examining cancer in atomic bomb survivors wherein the risk of solid tumor cancers was found to continue rising throughout the life span with a significant dose response observed within a 0-0.2Gy (0- 20,000 mrem) dose range which supported a hypothesis that there is no threshold below which cancers are not induced. In October 2020, the Director of the Post-9/11 Era Environmental Health Program submitted another memorandum after a thorough review of the Veteran’s file, including the Veteran’s hearing testimony, new evidence, and contentions. Again, the Director noted the Veteran’s potential ionizing radiation as calculated by the AFSC to be estimated at 170 mrem. The memorandum discussed the Veteran’s past tobacco use and family history of cancer, as observed in the aforementioned November 2016 memorandum, and noted that the Veteran’s military service does not include participation in any “Radiation Risk Activity” as defined in 38 C.F.R. § 3.309 (d). The Director also reviewed and addressed the September 2020 VA medical opinion, concluding that the opinion does not use “sound scientific and medical evidence” because it does not discuss the Veteran’s actual radiation dose and how that dose is causative for the claimed disease. The Director went on to explain that: “Radiation dose is the prime factor to consider when determining causation of radiation induced disease. Being in the vicinity of a radiation source does not necessarily mean a significant exposure occurred. Where presumption does not exist, the dose must be determined through direct measurement or reconstruction methodology. Once the dose is determined, the issue of disease causation can be addressed. We have the radiation dose provided by AFSC in this case, which is 0.17 rem.” Regarding the Veteran’s contention that he may have received additional radiation exposure as the result of a 1964 silo fire, the Director stated “[t]here is contention in the video evidence that the missile silo fire was an additional source of ionizing radiation exposure. If that were true, it would be included in dose estimate from AFSC. The exposure to these fumes would be an acute chemical exposure and would not be an additional radiation exposure.” The Director further noted that following the silo fire, the Veteran received a physical examination that was normal and noted no acute effects of the fire or potential fume inhalation, as the Veteran had been in the fall back area prior to the explosion. The Director also reviewed the September 2014 article from the Natural Library of Medicine at the NIH entitled “Occupational exposures and colorectal cancers: A quantitative overview of epidemiological evidence”, but observed that the article addressed only long-term exposure to chemicals and was not applicable to the Veteran’s circumstances as the Veteran’s exposures are all acute in nature. The Director then reviewed the position statement PS010-4, Radiation Risk in Perspective, from the Health Physics Society (revised in February 2019) which provided: “The average annual effective dose from natural background radiation in the United States is about 3 mSv [0.3 rem]. A person might accumulate an effective 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.” The Director ultimately concluded that because the Veteran’s assigned lifetime total radiation dose (0.17 rem) did not exceed 100 mSv (10 rem) above natural background, that it was unlikely that the Veteran’s colon cancer was caused by exposure to ionizing radiation and/or fumes from a rocket fuel fire during military service. The Director of Compensation Service accepted the dose estimate of 170 mrem (0.17 rem) in an October 2020 memorandum opinion and opined that there was no reasonable possibility that the Veteran’s colon cancer was the result of exposure to ionizing radiation during his service. The Director noted that the evidence of record shows the Veteran’s occupational exposure to ionizing radiation does not meet or exceed an annual dose estimate of 5 rem or 10 rem in a lifetime based on an October 2020 advisory opinion from the director for the Post-9/11 Era Environmental Health Program. Regarding the Veteran’s assertion that his colon cancer is etiologically related to exposure to rocket fuel fumes as set forth in the May 2019 hearing testimony, in a December 2020 addendum opinion, the VA examiner opined that the Veteran’s colon cancer was less likely than not caused by exposure to rocket fuel fumes. By way of rationale, the examiner provided that medical literature does not support an association between exposure to rocket fuel fumes and colon cancer. While the claims file contains two medical opinions which link the Veteran’s present diagnosis of colon cancer to radiation exposure during active duty service, the Board finds these opinions to be less probative than the medical opinions provided by the Director of the Post-9/11 Era Environmental Health Program which concluded that the condition is not etiologically related to radiation exposure, exposures related to the 1964 silo fire, or exposure to rocket fuel fumes and were prepared by medical officials with expertise in radiogenic diseases. Both the September 2020 VA medical opinion and the August 2015 private medical opinion failed to address the Veteran’s noted history of tobacco use, family history of cancer, or the Veteran’s estimated radiation dose of 0.17 rem during active duty service. The September 2020 VA examiner also failed to address the conflicting opinion from the Post-9/11 Era Environmental Health Program Director presented in the November 2016 memorandum, which was of record at the time of the VA examination report and medical opinion. The Board further observes that neither the September 2020 examiner, a Family Nurse Practitioner, nor the private physician, who is certified in Internal Medicine, Endocrinology & Metabolism, are specialists regarding radiogenic diseases and that both opinions rely heavily on general medical literature to support their conclusions. Conversely, the two memoranda provided by the Director of the Post-9/11 Era Environmental Health Program were prepared by specialists in the field of radiogenic diseases, addressed the Veteran’s history of tobacco use, family history of cancer, and the Veteran’s contentions regarding additional exposures due to a silo fire and rocket fuel fumes. The two opinions concluding that it is unlikely that the Veteran’s colon cancer was “caused by exposure to ionizing radiation and/or fumes from a rocket fuel fire during military service” contained in the two memoranda were further supported not only with evidence from the claims file, but also with controlling medical literature - position statement PS010-4, Radiation Risk in Perspective, from the Health Physics Society. Accordingly, the Board finds the November 2016 and October 2020 memoranda from the Director of the Post-9/11 Era Environmental Health Program to be more probative than the September 2020 and August 2015 medical opinions. Finally, regarding the Veteran’s contention that his colon cancer may be etiologically related to exposure to rocket fuel fumes, the record contains no medical opinions which positively link exposure to rocket fuel fumes to the Veteran’s claimed condition. As noted above, the December 2020 VA examiner found that the Veteran’s colon cancer is less likely than not caused by exposure to rocket fuel fumes. While the Board recognizes that the Veteran is competent to describe his symptoms without any specialized knowledge or training, as a layperson, the Veteran is not competent to render a nexus opinion regarding the etiology of any current disorder; such determinations require medical expertise. Jandreau v. Nicholson, 492 F.3d at 1372 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the Board affords more probative weight to the December 2020 VA examiner’s opinion than the Veteran’s own contentions. From the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s colon cancer is etiologically related to active duty service, exposure to ionizing radiation during service, proximity to a silo fire during service, or exposure to rocket fuel fumes. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable in the instant appeal. Accordingly, entitlement to service connection for colon cancer is denied. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gorum, 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.