Citation Nr: 21015393 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-13 217 DATE: March 17, 2021 ORDER Entitlement to service connection for bladder cancer, claimed as secondary to ionizing radiation is denied. FINDINGS OF FACT 1. The Veteran participated in a radiation risk activity, as defined by VA regulations, during service and is a radiation-exposed Veteran. 2. The Veteran’s bladder cancer did not have its onset in service, or manifest to a compensable degree within one year of service discharge and is not related to service related to any incident of active military service, including exposure to ionizing radiation. CONCLUSION OF LAW The criteria for service connection for bladder cancer are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1963 to October 1969. In May 2018, he testified via video conference before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. Service Connection The Veteran is seeking service connection for bladder cancer, claimed as secondary to ionizing radiation. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as “chronic” by VA. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for disabilities that are claimed as being attributable to exposure to ionizing radiation during service can be established via any one of three different methods. See Davis v Brown, 10 Vet. App. 209, 211 (1997), Rucker v Brown, 10 Vet. App. 67, 71 (1997). First, certain types of cancer are presumptively service connected specific to radiation-exposed veterans. 38U.S.C.§ 1112(c), 38C.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 established by competent evidence establishing the existence of a medical nexus between the claimed condition and exposure to ionizing radiation during active service. 38 C.F.R. § 3.303(d); See Combee v. Brown, 34 F.3d 1039, 1043 (Fed.Cir. 1994). Application of the above provisions is dependent upon establishing that the veteran was exposed to ionizing radiation during active service. 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” includes on site participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309 (d)(3)(ii). The term onsite participation includes during the six month period following the official operational period of an atmospheric nuclear test, presence at the test site or other test staging area to perform official military duties in connection with completion of projects related to the nuclear test decontamination of equipment used during the nuclear test. 38 C.F.R. § 3.309 (d)(3)(iv)(C). Diseases presumptively service connected for radiation-exposed Veterans under the provisions of 38 C.F.R. § 3.309 (d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin’s disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 C.F.R. § 3.309 (d)(2). The term “radiogenic disease” means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) thyroid cancer; (iii) breast cancer; (iv) lung cancer; (v) bone cancer; (vi) liver cancer; (vii) skin cancer; (viii) esophageal cancer; (ix) stomach cancer; (x) colon cancer; (xi) pancreatic cancer; (xii) kidney cancer; (xiii) urinary bladder cancer; (xiv) salivary gland cancer; (xv) multiple myeloma; (xvi) posterior subcapsular cataracts; (xvii) non-malignant thyroid nodular disease; (xviii) ovarian cancer; (xix) parathyroid adenoma; (xx) tumors of the brain and central nervous system; (xxi) cancer of the rectum; (xxii) lymphomas other than Hodgkin’s disease; (xxiii) prostate cancer; and (xxiv) any other cancer. 38 C.F.R. § 3.311(b)(2). 38C.F.R.§ 3.311 contains specific instructions for the development of claims based on exposure to ionizing radiation. Specifically, 38C.F.R.§ 3.311(a) requires VA to request 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 treatment 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. 38 C F R § 3.311(a)(2)(iii). After it is determined by the dose assessment that the Veteran was exposed to radiation, the case is referred to the Under Secretary for Benefits for further consideration. 38C.F.R.§ 3.311(b). The Under Secretary for Benefits shall consider the claim with reference to the factors specified in 38C.F.R.§ 3.311(e) and may request an advisory opinion from the Under Secretary for Health. 38C.F.R.§ 3.311(c)(1). The Under Secretary for Benefits must then determine the likelihood that the claimant’s exposure to radiation in service resulted in the radiogenic disease. 38C.F.R.§ 3.311(c)(1). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts in his claim submissions and Board hearing testimony that he was exposed to radiation while monitoring film badges and maintaining and repairing reactor components as part of his duties as an engineering lab technician aboard submarines during military service. See VA Form 9, received by VA in April 2015. He also contends that he when he served as an engineering technician while stationed in Idaho, Falls, Idaho, he engaged in the chemical testing and repair of the reactors and that he checked film badges without a dosimeter. Transcript (T.) at pages (pgs.) 3-4. Service treatment records include copies of DD Form 1141, Record of Exposure to Ionizing Radiation, with recorded entries of radiation exposure from February 15, 1965 to September 16, 1969. A post-service pathology report confirmed the Veteran’s carcinoma of the bladder in July 2011. See VA treatment reports, dated from May to July 2011, received into the Veterans Benefits Management System (VBMS) electronic record on February 22, 2013. Bladder cancer is not among those forms of cancer which may be presumptively service connected under the provisions of 38 C.F.R. § 3.309(d)(2). However, it is a radiogenic disease under the provisions of 38 C.F.R. § 3.311(b)(2)(xxiii) and given the Veteran’s contention that he was exposed to ionizing radiation during service, he is entitled to the special development procedures under 38 C.F.R. § 3.311(b)(1) for the purpose of establishing the nature and extent of radiation exposure. To that end, the matter was referred to the Director, Compensation Service (Director) to obtain a dose estimate and an opinion as to whether the Veteran’s bladder cancer resulted from in-service ionizing radiation exposure. In a March 2013 memorandum to the Under Secretary of Health (USH), the Director stated that the Veteran’s DD Form 1141 showed he was exposed to radiation from February 15,1965 to September 16, 1969 aboard the USS Proteus (AS-19); the SSBN 642; and the SSBN 596 and that his total lifetime exposure was 00.581 rem. The Director noted that an October 2012 letter from the Department of the Navy revealed the Veteran had radiation exposure from November 1, 1967, to October 3, 1969, with the following doses: SDB WB (00.020 rem), DDE-Photon (00.494 rem), and DDE-Neutron (00.000 rem). See Director’s Memorandum to the Under Secretary of Health, dated March 4, 2013. In a March 2013 memorandum, the Director of Post-9/11 Era, Environmental Health Program (DEHP), noted that the Veteran had been diagnosed with bladder cancer in 2011 and that his DD Form 1141 stated that he had been exposed to ionizing radiation for a total lifetime dose of 00.581 rem. The DEHP related that The Health Physics Society, in their position statement PSO 10-1, Radiation Risk in Perspective, revised in August of 2004, stated that “in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against quantitative estimation of health risks below an individual dose of 5 rem in one year or a lifetime dose of 10 rem above that received from natural sources.” The position statement also states that “there is substantial and convincing scientific evidence for health risks following high-dose exposures. However, below 5-10 rem (which includes occupational and environmental exposures), risks of health effects are either too small to be observed or are nonexistent. See DEHP Memorandum to the Director, dated March 28, 2013. In an April 2013 opinion, the Director concluded that, based on the Veteran’s DD-1141 forms and total lifetime radiation exposure of 00.581, there was no reasonable possibility that his bladder cancer could be attributed to ionizing radiation exposure while in military service.” See Director’s Advisory Opinion dated April 15, 2013. In August 2018, the Board requested additional consideration, stating the Director’s opinion was based on incomplete information surrounding the Veteran’s circumstances of exposure to radiation and thus insufficient for adjudication of the claim. Specifically the dose estimate which formed the basis of the opinion, was derived from the expected exposure of the Veteran having worked on submarines as a marine mechanic with no mention of the Veteran’s service as an engineering lab technician while stationed at a nuclear training facility at Idaho, Falls, Idaho. The claim was remanded to obtain a new opinion as to whether it is at least as likely as not that the Veteran’s bladder cancer resulted from his exposure to ionizing radiation based on his service as an engineering technician in Idaho Falls, Idaho, where he was engaged in the chemical testing and repair of the reactors and checking of film badges without a dosimeter. In an October 2020 memorandum to the UHS, the Director noted that the Veteran’s DD Form 1141 indicated that while assigned to the Nuclear Power Training Unit (NPTU) at Idaho Falls, Idaho from February 15, 1965 to November 22, 1965 and aboard the USS Proteus AS-19 from May 1, 1967 to October 31, 1967, he had an accumulative total radiation dose of 00.309 rem (measured by film badge). The forms also show that while assigned to the USS Kamehameha (SSBN642) from October 27, 1968 to July 16, 1969 and the USS Barb (SSN596) from August 29, 1969 to September 15, 1969, the Veteran was exposed to a total radiation dose of 00.272 rem. The Director noted that a September 2020 letter from the Department of the Navy revealed that the Veteran had radiation exposure from November 1, 1967, to October 3, 1969, with the following doses: SDE WB (00.000 rem), DDE-Photon (00.072 rem), DDE-Neutron (00.000 rem), SDE WB (00.000 rem), DDE-Photon (00.120 rem), DDE-Neutron (00.000 rem), DDE-Photon (00.042 rem), SDE WB (00.020 rem), DDE-Photon (00.210 rem), and DDE-Photon (00.050 rem). See Director’s Memorandum to the Under Secretary of Health, dated October 16, 2020. In an October 2020 memorandum, the DEHP noted that in their prior opinion the reported dose of 00.581 rem, based on the Veteran’s DD Form 1141, did not account for all of his radiation dose. After carefully analyzing the overlapping doses from the DD Form 1141 and the Navy’s September 2020 Naval Dosimetry Center report, it was noted that 0.050 rem had not been added and that the correct dose was is 0.631 rem. It was also noted that the Veteran was monitored during his time training at the NPTU in Idaho Falls, with a total dose of 0.00 rem. However, since he could not remember wearing a badge at NTPU, a dose of 5 rem was administratively assigned for the period February 15, 1965 to November 22, 1965, which is the allowed occupational annual dose1 for one year. The new total dose assigned was 5.631 rem for the time in service. The DEHP also related that the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) was used to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran’s bladder cancer. Using the assigned dose, in the earliest year of exposure (which gives greater benefit of doubt to the Veteran), the program calculated a 99th percentile value for the probability of causation of 9.09 percent. In view of the above, it is not likely that bladder cancer was caused by exposure to ionizing radiation while in military service. See DEHP Memorandum to the Director, dated October 29, 2020. In a November 2020 Advisory Opinion, the Director noted the overlapping doses and reported the correct dose as 0.631 rem for the Veteran’s time in service. In addition, a dose of 5 rem was assigned for the period the Veteran was at the NPTU from February 15, 1965 to November 22, 1965. The total dose assigned for the Veteran is 5.631 rem. The Director concluded that based on the scientific evidence referenced in the memorandum from the VA USH and review of the evidence in its entirety, there is no reasonable possibility that bladder cancer can be attributed to ionizing radiation exposure during military service See Director’s Advisory Opinion dated November 2, 2020. Based upon the medical evidence of record and the administrative opinions of record, entitlement to service connection, for the Veteran’s bladder cancer due to his in-service radiation exposure is not warranted under 38 C.F.R. § 3.311. The opinions rendered by the Director and the DEHP are entitled to significant probative weight. Both opinions considered the pertinent evidence of record; discussed the factors listed under 38 C.F.R. § 3.311 (b) and (c); and offered clear conclusions with the calculations and assumptions used in reaching the conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Most notably, the Veteran was afforded the greatest benefit of the doubt by including a calculation based on the “administratively assigned” dose level of 5 rem, the allowed occupational annual dose for one year as well as using the earliest year of exposure. Therefore, even after affording all benefit of doubt in estimating the Veteran’s level of in-service exposure, the Board finds their opinions offer probative evidence against the appeal. The Board is also unable to attribute the Veteran’s bladder cancer to his in-service radiation exposure on a direct basis. Service treatment records fail to reveal any signs or symptoms suggestive of bladder cancer. There is also no objective evidence that the Veteran was diagnosed with bladder cancer within one year of service discharge. As noted above the Veteran’s bladder cancer was initially diagnosed in 2011 more than more than 40 years after the Veteran separated from service. Since service and post-service treatment records provide no basis to grant both the bladder cancer claim, and in fact provide evidence against it, the Board again finds no basis to obtain a VA examination or medical opinion. Moreover, the Veteran has not proposed, nor does the evidence suggest, any other relationship between the Veteran’s bladder cancer and his active military service, besides the exposure to ionizing radiation. Because the Veteran’s bladder cancer was not present in service, or manifest to a compensable degree within one year of service discharge and is not related to any incident of active military service, including exposure to ionizing radiation, the claim cannot be granted. 38 C.F.R. §§ 3.303, 3.309(a), 3.309(d), and 3.311. Accordingly, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bryant, Jeana R 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.