Citation Nr: 21011078 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-05 851A DATE: February 26, 2021 ORDER 1. New and material evidence having been received, the petition to reopen the claim for service connection for schwannoma of the pelvic area (claimed as sarcoma) due to radiation exposure during service is granted. 2. Service connection for schwannoma of pelvic area (claimed as sarcoma) due to radiation exposure during service is granted. FINDINGS OF FACT 1. The evidence received since the Veteran’s request to withdraw his claim for service connection for schwannoma of the pelvic area is not duplicative or cumulative of evidence previously of record and it raises a reasonable possibility of substantiating the Veteran’s claim. 2. Resolving all reasonable doubt in the Veteran’s favor, the Veteran’s schwannoma of the pelvic area is at least as likely as not attributable to his exposure to ionizing radiation during his active duty service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of service connection for schwannoma of the pelvic area have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for schwannoma of the pelvic area are met. 38 U.S.C. §§ 1110, 1112, 1131, 1133, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1951 to June 1955 This matter came to the Board of Veterans’ Appeals (Board) from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening the claim for service connection for schwannoma of the pelvic area due to the lack of new and material evidence. In December 2020, the Veteran testified via videoconference before the undersigned Veterans Law Judge. The transcript is of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2009). 1. New and material evidence having been received, the petition to reopen the claim for service connection for schwannoma of the pelvic area (claimed as sarcoma) due to radiation exposure during service is granted. By way of procedural background, this matter was before the Board in August 2000, September 2003, May 2007, and April 2010 and was remanded for additional development. Specifically, in April 2010, the Board remanded the claim for an advisory opinion on whether the new dose estimates provided by the Defense Threat Reduction Agency (DTRA) support the conclusion that the Veteran’s cancer is related to exposure to ionizing radiation in service. During the pendency of this remand, the Veteran submitted a written statement that indicated the withdrawal of his claim for service connection for schwannoma of the pelvic area. See June 2010 Statement in Support of Claim. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a final decision. 38 C.F.R. § 20.205. A Board remand is not a final decision. 38 C.F.R. § 20.1100. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.205. Unless an appeal is withdrawn on the record at a hearing, appeal withdrawals must be in writing and must include the name of the veteran, the name of the claimant or appellant if other than the veteran, and a statement that the appeal is withdrawn. The Board finds that this withdrawal is explicit and unambiguous based on the wording/language used in the statement. Thus, the Veteran properly withdrew his claim for service connection for schwannoma of the pelvic area. In August 2012 the Veteran filed a claim to reopen his service connection for schwannoma claim. The RO denied the Veteran’s claim in a September 2013 rating decision, because the Veteran failed to submit new and material evidence necessary to reopen. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. The last decision of record is the June 2010 SSOC which denied service connection for pelvic cancer due to ionizing radiation exposure due to a lack of evidence showing a link between the Veteran’s radiation exposure in service and his diagnosed schwannoma. The decision highlighted the May 2010 memorandum from the Acting Deputy Chief Public Health and Environmental Hazards Officer (ADCPHEH) advising that it is unlikely that the Veteran’s schwannoma can be attributed to ionizing radiation exposure while in service. It further highlighted the May 2010 letter from the Director, Compensation and Pension Service which indicated that there is no reasonable possibility that the Veteran’s pelvic neoplasm resulted from exposure to radiation in service. Evidence submitted after the June 2010 SSOC includes the Veteran’s testimony confirming that he was exposed to 18 rems of ionizing radiation as per the May 2010 VA Advisory opinion. The Veteran further submitted a case report outlining three cases where radiation therapy due to an X-ray probably contributed to the pathogenesis of the schwannoma. Additionally, the Veteran provided an article from MIT News revealing that a chest X-ray emits radiation in the amount of 10 rems, showing that the Veteran’s exposure to 18 rems is equivalent to 1, 800 chest films. The Board finds that new and material evidence has been presented. The evidence is new because it was not previously submitted to VA. The evidence is material because it relates to the unestablished facts necessary to establish the claim- evidence showing that exposure to less than 18 rems of ionized radiation has been shown to probably contribute to the pathogenesis of schwannoma. Accordingly, for the above reasons, the Veteran’s claim is reopened. 2. Service connection for schwannoma of pelvic area (claimed as sarcoma) due to radiation exposure during service is granted. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). Generally, to establish service connection, there must be competent 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The determinations as to whether each element of a claim is met is based on an analysis of all the evidence of record, and evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection for a disability claimed to be attributable to ionizing radiation exposure during service, may be established in one of three ways. First, VA has identified certain diseases which are presumed to be the result of radiation exposure. That presumption must be based upon a finding that the Veteran was exposed to radiation. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). Second, there are other radiogenic diseases which may be service connected directly. 38 C.F.R. § 3.311. The list of radiogenic diseases, however, is not exclusive. The Veteran may provide competent scientific or medical evidence that the disease claimed to be the result of radiation exposure is a radiogenic disease. 38 C.F.R. § 3.311 (b)(4). Third, even if the disease in question is not listed in 38 C.F.R. § 3.309 or is not a radiogenic disease under 38 C.F.R. § 3.311, the Veteran is not foreclosed from proving direct service connection by establishing direct actual causation. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant 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 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-6 (1990). The Veteran has argued that service connection for schwannoma should be granted based on his exposure to ionizing radiation. Specifically, the Veteran contends that he was exposed to ionizing radiation during his participation in Operation Castle when a large nuclear device was detonated during atmospheric nuclear testing. In September 2000, the RO, pursuant to 38 C.F.R. § 3.3 11, wrote to the Defense Threat Reduction Agency (DTRA) and requested a radiation dose estimate. The RO provided information regarding the Veteran, including his assigned units during service. In response the DTRA wrote in April 2000 that historical records confirmed that the Veteran was a participant of Operation Castle, during which he was exposed to ionizing radiation as a result of nuclear weapon testing. The Veteran was found to have sustained a neutron dose of 0, and a gamma dose of 5.1, with an external upper bound of 10.0 rem. He was found to have an internal committed dose to the pelvis of less than 1 rem. The RO subsequently requested an opinion from the VA Compensation and Pension service, which in turn referred the request to the Under Secretary for Health. In September 2000, Susan Mather, M.D., M.P.H., the Chief Public Health and Environmental Hazards Officer, gave an opinion, based in part on the above referenced dose estimate, regarding the likelihood that the Veteran’s schwannoma was due to radiation exposure in service. The opinion weighed against the claim, in part, due to the estimated level of exposure. In August 2002, the Veteran submitted a memo from a medical consultant Dr. A.D.G. The examiner opined that based on the above referenced dose estimate, it was more likely than not that the Veteran’s exposure to ionizing radiation during service resulted in the development of neural tumor or schwannoma. The rationale detailed the Veteran’s medical history and outlined case studies affirming the fact that ionizing radiation has been incriminated in the genesis of tumors since 1902, and that low dose radiation may induce benign or malignant tumors, which usually arise after a long interval. The National Research Council (NRC) published a report on May 8, 2003 that found the methods used by the DTRA to calculate reconstructed dose estimates required under 38 C.F.R. § 3.311, while generally valid for estimating average dose exposure, used methodology to calculate upper-bound doses for both external and inhaled exposures which often underestimated exposure and was highly uncertain. As a result, in cases such as the present one, where the veteran claims exposure to radiation from atmospheric weapons testing, a request must be sent to the DTRA for a revised dose estimate. See Veterans Benefits Administration Fast Letters 03-3 1, 04-20. As a result, the RO did attempt to request a revised dose estimate; however, an estimate was not requested from DTRA, but rather from the Naval Dosimetry Center, which indicated that the veteran did not have any occupational exposure to ionizing radiation in service. Pursuant to the May 2007 Board remand, the RO requested and received revised dose estimates from DTRA which noted that doses the Veteran could have received during his participation in Operation CASTLE are not more than: external gamma does: 18 rem; external neutron dose: .5 rem, and internal committed dose to the nervous system (alpha and beta plus gamma): 0.1 rem. See December 2009 Third Party Correspondence. Such dose estimate provides potentially higher results than that of the April 2000 dose estimate results. Based on the information outlined above, the RO requested an opinion from the Under Secretary of Benefits who found that based on the dose estimates of 16 rem external gamma dose, 0.5 rem of external neutron dose, and 0.1 rem of internal committed alpha and beta dose to the nervous system, it is unlikely that the Veteran’s schwannoma can be attributed to exposure to ionizing radiation while in military service. See May 2010 VA Memorandum. Similarly, the May 2010 Advisory Opinion from the VA Compensation and Pension service stated that based on the dose estimate provided by the DTRA, and review of the evidence in its entirety, there is no reasonable possibility that the Veteran’s pelvic neoplasm resulted from exposure to radiation in service. Considering the evidence of record in light of the applicable legal authority, to include the benefit-of-the-doubt doctrine, the Board finds that service connection for schwannoma of the pelvic area is warranted. First addressing the current disability requirement, the Board notes that a diagnosis of schwannoma is confirmed in the Veteran’s medical records. See May 1997 Medical Treat Records. (Continued on the next page)   Further, as verified by the Veteran’s service personnel records, and as found by the agency of original jurisdiction (AOJ), the Veteran has confirmed exposure to ionizing radiation during service, which meets the in-service injury or disease requirement. The Board acknowledges that the April 2000 dose estimate was later revised in December 2009 to reveal higher results than that of the April 2000 dose estimate results. On the question of whether his schwannoma is medically-related to service, at the outset the Board finds the May 2010 opinion from the Under Secretary of Benefits to be of low probative value because it’s rationale is not based on the revised dose estimate provided by December 2009 DTRA opinion. While the AOJ obtained a medical opinion from the VA Compensation and Pension service which found there is no reasonable possibility that the Veteran’s pelvic neoplasm resulted from exposure to radiation in service, the Veteran has presented a positive medical opinion linking his exposure to ionizing radiation to his current schwannoma. Both opinions are of equal probative value; therefore, reasonable doubt will be resolved in the Veteran’s favor. As such, the Board finds that the criteria for service connection for schwannoma in the pelvic area, as due to exposure to ionizing radiation, are met. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.