Citation Nr: 21024621 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 19-25 976A DATE: April 23, 2021 ORDER Entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation, is granted. FINDINGS OF FACT 1. The Veteran was exposed to ionizing radiation during his participation in Operation CASTLE. 2. Resolving reasonable doubt in the Veteran’s favor, his prostate cancer is at least as likely as not related to exposure to ionizing radiation in service. CONCLUSION OF LAW The criteria to establish service connection for prostate cancer are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served as a member of the United States Navy, with active service from February 1952 to September 1955. In September 2010, the Board remanded the Veteran’s claim for referral to the Under Secretary for Benefits under 38 C.F.R. § 3.311(b). In May 2012, the Board denied the claim for service connection for prostate cancer, to include as due to ionizing radiation. The Board found that the Veteran had been diagnosed with prostate cancer and that he met the criteria for qualification as a “radiation-exposed” Veteran; however, because prostate cancer is not a presumptive disability under 38 C.F.R. § 3.309(d)(2), and the VA Under Secretary of Health found it was unlikely that his prostate cancer could be attributed to radiation exposure, his prostate cancer could not be service connected based on presumption; further, there was no evidence on which to grant service connection on a direct basis. In July 2015, the Veteran submitted additional evidence for consideration related to his prostate cancer, and submitted a formal claim to reopen in May 2016. A November 2016 rating decision denied reopening. Another request to reopen was filed by the Veteran in January 2018 but was unsigned; an April 2018 request to reopen was submitted and June and December 2018 rating decisions denied reopening as the evidence was not new and material. The Veteran timely appealed the decision in December 2018. An August 2019 statement of the case found new and material evidence had been submitted which warranted reopening but denied the claim on the merits. In September 2019, the Veteran filed a VA Form 9 which appealed “each and every issue listed on any SOCs issued within the 60 days,” and a VA Form 10182, Notice of Disagreement, which appealed “every condition on any condition within the past year.” A letter dated October 30, 2019 from the Veteran’s attorney clarified that the September 2019 Form 9 was meant to appeal the prostate cancer claim. Nonetheless, the Veteran was sent a letter providing him the opportunity to continue as a legacy appeal or to opt-in to the AMA. While no response has been received as of this date, such is not prejudicial to the Veteran as the Board grants the claim. A Board video-conference hearing was held in January 2021 before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the record. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection – Applicable Laws and Regulations Generally, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection for claims based on exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311 if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred in or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation but must also determine whether the disability was otherwise the result of active service. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. A “radiation-exposed veteran” is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. 38 C.F.R. § 3.309(d)(3)(i), (ii). Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C. § 1112(c) and 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 U.S.C. § 1112(c)(2); 38 C.F.R. § 3.309(d). If a claimant does not qualify as a “radiation-exposed veteran” under 38 C.F.R. § 3.309(d)(3) and/or is not diagnosed with one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the Veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, “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). Under the special development procedures in § 3.311(a), dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the Veteran’s exposure to radiation. 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). A layperson is competent to report the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). In addition, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).   When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Analysis The Veteran contends that his prostate cancer is related to his military service, specifically to loading, transporting, and unloading radioactive material from Honolulu, Hawaii to Eniwetok Atoll during Operation Castle. See September 2005 Statement in Support of Claim; September 2005 Radiation Risk Activity Information; May 2018 Correspondence to VA; December 2019 Radiation Risk Activity Information Sheet; January 2021 Hearing Transcript, page 3, 5, 6. As an initial matter, the Veteran has been diagnosed with prostate cancer and was treated with brachytherapy in June 2005, with subsequent visits to check his PSA levels. See June 2005 VA Urology Procedure. As noted above, to establish presumptive service connection under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d), the Veteran must currently have a disease listed under 38 C.F.R. § 3.309(d)(2), and must have been a radiation-exposed veteran who participated in a radiation-risk activity, as defined by the regulation. See 38 C.F.R. § 3.309(d)(3). Although the record demonstrates that the Veteran in this case participated in a radiation-risk activity, namely, Operation CASTLE, prostate cancer is not one of the listed diseases under 38 C.F.R. § 3.309(d)(2). Thus, since presumptive service connection provisions under such regulation are not applicable to this case, the Board must examine the Veteran’s claim under 38 C.F.R. § 3.311, which provides for special development in cases involving radiogenic diseases. 38 C.F.R. § 3.311 provides for the development of claims based on an assertion of radiation exposure during active service and post-service development of a radiogenic disease. The provisions do not give rise to a presumption of service connection, but rather, establish a procedure for handling a veteran’s claim based on radiation exposure. See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). Under 38 C.F.R. § 3.311, all claims in which it is established that a radiogenic disease first became manifest after service, and it is asserted that the disease resulted from radiation exposure, a dose assessment of that radiation exposure must be undertaken. The Veteran has been diagnosed with prostate cancer, which is listed as a radiogenic disease under 38 C.F.R. § 3.311. Furthermore, the Veteran was diagnosed with prostate cancer within the requisite period, five years or more, after exposure. See 38 C.F.R. § 3.311(b)(5)(iv). The Defense Threat Reduction Agency (DTRA) prepared dose estimates, which indicated that the Veteran’s potential doses of exposure was not more than: external gamma dose of 18 rem; an external neutron dose of 0.5 rem; an internal committed dose to the prostate (alpha) of 4.5 rem; and an internal committed dose to the prostate (beta plus gamma) of 2 rem. See October 2006 DTRA Letter. In a VA memorandum to Director of Compensation and Pension Service, the Director of Radiation and Physical Exposures relied on the dose estimates calculated by the DTRA and explained how the probability of causation was calculated at 26.30 percent, ultimately finding that it was unlikely that the prostate cancer was caused by ionizing radiation in military service. See December 2010 VA Memorandum. Accordingly, the Director in a letter to the RO Director, adopted the findings of the Director of Radiation and Physical Exposures and echoed the conclusion that there is no reasonable possibility that the Veteran’s prostate cancer was the result of exposure to ionizing radiation. See January 2011 Correspondence Regarding Radiation Review Under 38 C.F.R. § 3.311. In doing so, the Director considered a variety of factors pursuant to 38 C.F.R. § 3.311(e). See Hilkert v. West, 12 Vet. App. 145, 149-50 (1998) (“a discussion by the Under Secretary for Benefits of all of the factors under paragraph (e) is not required if the Under Secretary for Benefits recommends that there is ‘no reasonable possibility that the veteran’s disease resulted from radiation exposure in service’ as authorized under 38 C.F.R. § 3.311(c)(1)(ii)”). The Board finds that while the directives under 38 C.F.R. § 3.311(e) have been complied with, in light of the aforementioned medical advisory opinion by the Director of Compensation and the Director of Radiation and Physical Exposures, service connection based on the procedural advantages of 38 C.F.R. § 3.311 is not warranted. Nonetheless, service connection for prostate cancer is warranted based on evidence of direct causation as will be explained below. As mentioned above, the United States Court of Appeals for the Federal Circuit in Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), determined that the regulations governing presumptive service connection for radiation exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. Accordingly, the Board will proceed to evaluate the Veteran’s claim under the regulations governing direct service connection. See Combee, 34 F.3d at 1043-1044; see also 38 C.F.R. § 3.303(d). First, as reflected above, a current disability, namely prostate cancer, has already been established. The Veteran does not contend that he was diagnosed with a disorder of the prostate during service. Service treatment records, to include his separation examination, are absent of any findings related to the prostate or prostate cancer. Notwithstanding, the Veteran’s exposure to ionizing radiation during the Veteran’s his active duty service in Operation CASTLE is conceded. Therefore, the second element for service connection, an in-service event, has been met. With regard to the nexus element, the Director of Radiation and Physical Exposures determined that it was unlikely that the Veteran’s prostate cancer was related to the radiation exposure that he experienced during service; a conclusion adopted by the Director of Compensation. The record, however, also contains two private medical nexus opinions. In a June 2015 opinion, Dr. G.L.G., the medical doctor who treated the Veteran for his prostate cancer and performed his brachytherapy, noted the Veteran’s history of 40-60 hours of transportation of the hydrogen bomb and parts from Honolulu, Hawaii, to Eniwetok Atoll. Dr. G.L.G. stated that it is imperative that the Veteran be evaluated in terms of his radiation exposure affecting his health, including his prostate condition. Dr. G.L.G. stated that, as he reviewed several of the websites addressing the correlation between radiation exposure and prostate cancer, the Veteran’s history would “more likely than not” point to some correlation. It is noted that Dr. G.L.G. is identified as a medical doctor associated with the Yuma Oncology Center and the Mayo Clinic, specializing in brachytherapy and the treatment of prostate cancer, and was an associate professor at the University of Minnesota, where his research focused on radiation therapy, urology, and medical oncology. Although certainly competent to provide a medical opinion in this case, his June 2015 opinion was couched in speculative terms, finding only that the Veteran’s history would more likely than not point to some correlation. See Obert v. Brown, 5 Vet. App. 30, 33 (1995). Given its speculative nature, the opinion is provided little probative weight. Another private medical opinion was received in February 2021. In this regard, according to a July 2020 letter, Dr. M.J.F. opined that it is as likely as not that this Veteran’s prostate cancer was caused by his significant radiation exposure. Dr. M.J.F. recounted an accurate history of the Veteran’s service exposure, referenced studies regarding an increase in radiation prostate cancer cases involving nuclear workers, and reviewed the Veteran’s treatment records. Dr. M.J.F. is identified on the internet as a medical doctor specializing in urology. Overall, the Board finds the opinion to be adequate and of great probative value. In analyzing this claim, the Board has also considered the evidence of record, to include the lay statements and testimony from the Veteran. The Veteran’s statements as to causation, while not competent alone to provide a nexus, have been fully supported by the probative opinion from Dr. M.J.F. When considering the Veteran’s statements, later confirmed and bolstered by the positive nexus opinion, and weighing it against a negative advisory opinion from VA, which has not fully addressed direct service connection, the Board finds that the evidence is, at the very least, in relative equipoise. Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that the evidence of record sufficiently supports a causal relationship between the Veteran’s in-service exposures to ionizing radiation and prostate cancer. 38 U.S.C. §§ 1110, 5107(b); 3.102, 3.303(d). Accordingly, the criteria for establishing service connection for prostate cancer have been met. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moldawer, 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.