Citation Nr: 21023979 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-21 902 DATE: April 21, 2021 ORDER The claim of entitlement to service connection for rectal cancer, to include as due to exposure to ionizing radiation, is denied. FINDING OF FACT The Veteran’s rectal cancer did not have its onset during active service, and is not related to his active service, to include exposure to ionizing radiation. CONCLUSION OF LAW The criteria for service connection for rectal cancer have not been met. 38 U.S.C. § 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.309, 3.311 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1955 to July 1959. In August 2018, the Veteran testified under oath before the undersigned Veterans Law Judge at a travel board hearing in Oakland, California. A transcript of the hearing is of record. In February 2019, the claim was remanded for additional evidentiary development and has now been returned for further appellate consideration. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (wartime, 1131 (peacetime) (2012); 38 C.F.R. § 3.303(a) (2020). “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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for a disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by several different methods. First, there are certain types of cancer that are presumptively service connected, specific to radiation-exposed veterans. 38 U.S.C. § 1112(c) (2012); 38 C.F.R. § 3.309(d) (2020). 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) (2020). 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 under 38 C.F.R. § 3.303(d) in order to determine whether the disease diagnosed after discharge was incurred during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Entitlement to service connection for rectal cancer, to include as due to exposure to ionizing radiation. The Veteran was diagnosed with rectal cancer in mid-2002. Rectal cancer is not one of the diseases presumptively associated with radiation-exposed veterans. 38 C.F.R. § 3.309(d) (2020). Therefore, the Veteran is not entitled to presumptive service connection based on radiation exposure. Id. Nevertheless, rectal cancer qualifies as a “radiogenic disease” as defined in 38 C.F.R. § 3.311(b)(2) (2020). The provisions of 38 C.F.R. § 3.311 provide for development of claims based upon a contention of radiation exposure during active service and post-service development of a radiogenic disease. The purpose of these provisions is to relieve claimants of the burden of having to submit evidence to show that their disease may have been induced by radiation. These provisions do not give rise to a presumption of service connection, but rather establish a procedure for handling claims brought by radiation exposed veterans or their survivors. See Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997). The governing regulation essentially states that, in all claims in which it is established that a radiogenic disease first became manifest after service, and it is contended that the disease resulted from radiation exposure, a dose assessment will be made. In addition, the regulation states that if a veteran was exposed in service to ionizing radiation and, after service, developed one of the specifically enumerated radiogenic diseases stated above, his claim is then referred to the Under Secretary for Benefits who must determine, based on the extent of the exposure, whether there is a reasonable possibility that the disease was incurred in service. The Under Secretary for Benefits may request an advisory opinion from the Under Secretary of Health. The Under Secretary for Benefits shall render an opinion stating whether it is as least as likely as not that the Veteran’s disease resulted from exposure to ionizing radiation in service based upon sound scientific and medical evidence supporting the conclusion, or that there is no reasonable possibility that the veteran’s disease resulted from radiation exposure. 38 C.F.R. § 3.311(c) (2020). In response to the Regional Office’s (RO’s) request for confirmation of exposure, the Defense Threat Reduction Agency (DTRA) responded in June 2011 that the Veteran was a confirmed participant of Operation HARDTACK I, conducted at the Pacific Proving Ground in 1958. Doses which the Veteran could have received during his participation in Operation HARDTACK I were not more than: - External gamma dose: 18 rem - External neufron dose: 0.5 rem - Internal committed dose to the rectum (alpha): 0.1 rem Internal committed dose to the rectum. (beta plus gamma): 8 rem. Memorandum dated August 15, 2011 from Director, Environmental Agents Service, on behalf of the Under Secretary, reviewed the dose assessment and medical evidence. 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 rectal cancer. For purposes of calculation the radiation doses were assumed to have been received as a single acute dose in the earliest year of exposure (1951). This assumption would tend to increase the probability of causation as calculated by IREP. Using the data provided by DTRA, the program calculated a 99th percentile value for the probability of causation of 18.39%. In view of this, the opinion was offered that it is unlikely the cancer of the rectum can be attributed to ionizing radiation exposure while in military service. Advisory Radiation Review dated August 18, 2011 from Director, Compensation Service, reviewed and considered the medical opinion offered on behalf of the Under Secretary, as well as all evidence of record. It was shown you were 19 years old when exposed to ionizing radiation. Rectal cancer was diagnosed 44 years after exposure. Post-service employment includes sales clerk and trucker. On medical records from 2002 you were reported to have quit smoking 40 years earlier, i.e., early 1960’s. Family history of cancer or leukemia was not identified. As a result of the medical opinion and following review of the evidence in its entirety, the opinion was rendered there is no reasonable possibility the rectal cancer resulted from exposure to ionizing radiation during service. At the August 2018 hearing, the Veteran testified that he caught and ate fish during the relevant time in question, which might have impacted his radiation dose exposure. The Board noted in the remand that review that catching and eating fish were not considered by the DTRA and United States Strategic Command Center for Combating Weapons of Mass Destruction. See Correspondence, June 2011. In an August 2018 statement, a VA staff physician stated that the Veteran had been followed regularly at VA. His exposure to radiation was at least as likely as not to have resulted in his development of rectal cancer “based on my clinical experience.” The claim was remanded in February 2019. The Board asked that the Veteran’s dose exposure be reconsidered based on new information, to include catching and eating fish during the relevant time in question. In response to October 2019 inquiry, the DTRA, in February 2020 correspondence, stated that after review of the case file, it was determined that the DTRA letter of June 2011 remained current. Memorandum dated October 18, 2020, August 15, 2011 from Director, Environmental Agents Service, on behalf of the Under Secretary, reviewed the dose assessment and medical evidence. The report noted that the Veteran claimed service connection for rectal cancer as a result of exposure to ionizing radiation during service while he was a seaman aboard the USS Hooper Island (ARG-17) in 1958 during Operation Hardtack I in the Marshall Islands at Enewetak Atoll. He reported not being issued a film badge. The Veteran reported that on occasion, he went to Enewetak Atoll for recreation, including swimming and walking around, spending hours on the beaches that had been exposed to extensive nuclear radiation. He stated this happened at least four times for about four hours each time. He also reported eating a fish he caught while snorkeling in the waters at Marshall Island one time. The Veteran stated he also spent time on Japtan Island which was exposed to nuclear fallout contamination and was there about six hours and slept on crunched up coral. On June 29, 2011 (and confirmed on February 27, 2020), the Defense Threat Reduction Agency (DTRA) confirmed the Veteran as a participant of Operation HARDTACK I, a U.S. atmospheric nuclear test series conducted at the Pacific Proving Ground in 1958. DTRA stated the doses for which the Veteran could have received during his participation in are not more than: External gamma dose: 18 rem External neutron dose: 0.5 rem Internal committed dose to the rectum (alpha): 0.1 rem Internal committed dose to the rectum (beta + gamma): 8 rem Although the Veteran reported he was not issued a film badge, his service treatment records contain DD Form 1141, Record of Exposure to Ionizing Radiation, for the period of April 19, 1958 to June 23, 1958. The form showed gamma radiation measured by film badge with an accumulative total dose (in rep, rad, or r) of 00363. This DD 1141 was reviewed as found in the file. The method of entry was not for a film badge record. The entry appeared to be that of a self-reading dosimeter (or “pocket chamber”) where the device was read upon issue and again at turn-in. Both readings were the same: 00363 and 00363. The net dose would be zero. It was stated that this might be why the Veteran stated that he was never issued a film badge. Regardless, the dose estimate provided by DTRA was the correct estimate and is high-sided (at least a factor of 3 high) which gave benefit of doubt to the Veteran. The report continued noting that medical records showed a diagnosis of rectal adenocarcinoma in July 2002, approximately forty-four years after exposure to ionizing radiation. The Veteran was 19 years old at the time of exposure. Records showed that he was a Caucasian male and a former smoker (having quit around 1988). There was no family history of cancer. Following service, the Veteran reported working in the summer picking fruits and vegetables, shining shoes, working in a laundry, and later loading potato sacks. He was reported to have been a warehouse worker and foreman. He reported x-rays for dental and medical reasons. No other post-service exposure to radiation was noted or reported. Rectal cancer was not a disease listed under 38 C.F.R. § 3.309(d) (2020). In the medical opinion dated August 24, 2018, the physician stated that the Veteran’s exposure to radiation was at least as likely as not to have resulted in his development of rectal cancer based on the physician’s clinical experience. This report reflected that this opinion was of no probative value, as it did not discuss the actual dose estimate and how that dose was causative for rectal cancer. Radiation dose was the prime factor to consider when determining causation of radiation induced disease. Being near a radiation source does not necessarily mean a significant exposure occurred. Where presumption did not exist, the dose must be determined through direct measurement or reconstruction methodology. Once the dose was determined, the issue of disease causation could be addressed. A medical opinion that did not include a discussion of the measured, estimated or reconstructed radiation did not constitute “sound scientific and medical evidence.” The Director’s report continued noting that as per the Board remand request, all regulatory factors set forth in 38 C.F.R. § 3.311e (2020) would be considered. These included the probable dose, type, rate, and duration, the relative sensitivity of involved tissue, the Veteran’s gender and family history, his age at time of exposure, and the time lapse between exposure and onset of disease. Further in formulating a medical opinion, the record was reviewed in its entirety. 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 rectal cancer. It was noted that family history was not considered as a negative family history “just means” that there was no immediately identifiable genetic link to disease (although the disease could still be inherited.). Also, post-service exposures to radiation, or to other carcinogens, might also contribute to the development of the disease. The IREP and NIOSH were used to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran’s rectal cancer. This program was noted to be available on the Internet at https://www.niosh-irep.com/. The program calculated a 99th percentile value for the probability of causation of 16.23%. In view of the above, it was opined that it was unlikely that rectal cancer was caused by exposure to ionizing radiation while in military service. Upon review of the entire evidence of record, to include the treatment records, lay statements of the Veteran, records of his ionizing radiation exposure, and the medical opinions of record, the Board finds that the Veteran was exposed to ionizing radiation during his period of active service. However, in considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for rectal cancer as a result of his exposure to ionizing radiation. The Board finds that the 2020 opinion issued by the VA Director of the Post 9/11 Era Environmental Health Program is the most probative evidence of record. The opinion considered the relevant evidence and was supported by a compelling explanation. The record contains an August 2018 VA physician’s opinion that it was at least as likely as not that the Veteran’ rectal cancer resulted from his exposure to radiation during service. However, the Director, Environmental Agents Service, as noted above, pointed out that this opinion was of no probative value in as it did not discuss the actual dose estimate and how that dose was causative for rectal cancer. The Board agrees with this assessment of its probative value or lack thereof. The Board notes that the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board has considered the Veteran’s statements that his rectal cancer was caused by his exposure to radiation in service. However, whether the Veteran’s cancer is related to his radiation exposure is a complex medical question and is not within the knowledge of a lay person or determinable by observation with one’s senses. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, the Veteran’s statements are not competent evidence and not probative. The Board has also considered whether service connection for the Veteran’s rectal cancer can be established under 38 C.F.R. § 3.303(d) (2020) by showing that the disease was incurred during or aggravated by service on a direct basis. Service treatment records do not contain any symptoms of or treatment for rectal cancer. The Veteran was not diagnosed with rectal cancer until 2002, many years after service. In addition, the Veteran has not attributed his rectal cancer to any in-service event or injury other than his in-service exposure to ionizing radiation, which has already been addressed above. The claims file does not contain any competent evidence relating the Veteran’s rectal cancer to his service. The preponderance of the evidence weighs against a grant of service connection for the Veteran’s rectal cancer on any basis. As such, the claim of entitlement to service connection for rectal cancer must be denied. There is no reasonable doubt to be resolved as to the issue. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.