Citation Nr: 21025986 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 20-08 688 DATE: April 29, 2021 ORDER Service connection for breast cancer, status post mastectomy is denied. FINDING OF FACT Breast cancer was not manifest during service or within one year of separation from service and is not otherwise attributable to service. CONCLUSION OF LAW The criteria for service connection for breast cancer, status post mastectomy, have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from December 1974 to December 1994. This case comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions dated December 2017 and October 2018 of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for breast cancer. The Veteran is seeking service connection for breast cancer, which she contends is secondary to in-service exposure to ionizing radiation from the 1986 Chernobyl event. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition to direct service connection, service connection for a disease that is claimed to be attributable to ionizing radiation exposure during service may be established in two additional ways, which have been outlined by the Court. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, where it is contended that disease developed as a result of exposure to ionizing radiation during service, service incurrence may be presumed under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d) for veterans who participated in defined radiation risk activities and have certain diseases. As ionizing radiation exposure from the Chernobyl event is not listed among the “radiation-risk” activities, this provision does not apply. The second approach to substantiate a radiation exposure related service connection claim is under 38 C.F.R. § 3.311. To consider a claim under § 3.311, the evidence must show: (1) the veteran was exposed to ionizing radiation in service; (2) subsequently developed a radiogenic disease; and (3) such disease became manifest within a period specified by the regulation. 38 C.F.R. § 3.311(b). If any of these three requirements is not met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311. 38 C.F.R. § 3.311(b)(1)(iii). For purposes of 38 C.F.R. § 3.311, the term “radiogenic disease” means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2). The regulation states that the term radiogenic disease shall include breast cancer. Section 3.311(a) calls for the development of a radiation dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either 38 C.F.R. § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing and in 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 involving radiation exposure, the VA Under Secretary for Health will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. Id. After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that she developed breast cancer as a result of claimed exposure to ionizing radiation fallout from the Chernobyl accident while she was stationed in Germany in 1986. See Statement in Support of Claim dated December 21, 2017; Radiation Risk Activity Information Sheet dated June 18, 2018. The Veteran was diagnosed with breast cancer in 2016, well within the five year or more period specified by regulation. 38 C.F.R. § 3.311(b)(5)(iv). As breast cancer is defined as a radiogenic disease pursuant to 38 C.F.R. § 3.311(b)(2), the requirement for a current disease is satisfied. A review of the record shows that the RO made attempts to verify the Veteran’s claimed radiation exposure. Specifically, in July 2018, the RO sent a request to the US Army Dosimetry Center for a DD 1141 or an equivalent record of occupational radiation exposure pertaining to the Veteran’s claim radiation exposure from the 1986 Chernobyl disaster while the Veteran was stationed in Germany. An August 2018 from the Army Dosimetry Center indicated that the requested information was not a matter of record. As such, the AOJ correctly forward the records to the Under Secretary of Health for preparation for a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). In compliance with 38 C.F.R. § 3.311(a)(2)(iii), the record contains an October 2018 dose estimate from the Deputy Chief Consultant, Post Deployment Service with the assistance of a VA Health Physicist. In pertinent part, the experts noted that the Veteran was stationed in Germany at the time of the Chernobyl Accident, which occurred on April 26, 1986. It was noted that the United Nations Scientific Committee on the Effects of Atomic Radiation had performed numerous assessments of the Chernobyl accident and, in particular, referred to Annex D, Appendix B, Radiation Doses to Exposed Population Groups, which stated that the average effective (total) dose for persons in the country of Germy was 1.6 mSv (0.16 rem) during the period of 1986 to 2005. The experts found that “based on this, we will assign the Veteran a radiation dose of 0.16 rem.” As the opinion regarding an “average dose” contemplated that some people would have a higher exposure of ionizing radiation, in July 2020 the Board remanded the appeal for an addendum opinion using the highest level of the dose range to presume exposure level. In an October 2020 addendum opinion, the Under Secretary of Health found that it was unlikely that the Veteran’s breast cancer was caused by exposure to ionizing radiation. In so finding, the Under Secretary noted exposure levels below 10 rem above ground had observed radiation effects in people not statistically different from zero. In the Veteran’s case, her assigned lifetime total radiation dose of 1.76 rem did not exceed 0.1 Sv (10 rem) above natural ground. Based on the above, the Board finds that service connection for breast cancer is not warranted based on exposure to ionizing radiation. In so finding, the Board finds that the most probative evidence on the issue of nexus consists of the October 2020 addendum opinion. In that opinion, the Under Secretary of Health discussed the Veteran’s maximum dose of total radiation and found that it was insufficient to likely cause breast cancer. The opinion considers the specific facts of the Veteran’s case, to include her medical history, along with sound medical principles to support the conclusion that the Veteran’s breast cancer was unrelated to her radiation exposure. The Board finds that the opinion is competent, credible, and highly probative as to the issue of etiology. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In so finding, the Board acknowledges the Under Secretary of Health did not offer an opinion with the precise language of 38 C.F.R. § 3.311(c)(1)(i) and (ii) (offer an opinion of at least as likely as not or “no reasonable possibility”). The Veteran’s lifetime exposure to radiation, to include any radiation exposure while stationed in Germany, was estimated at 1.76 rem. Based on scientific data, the Under Secretary of Health stated that exposure levels below 10 rem above ground was not statistically different than zero in terms of observed radiation effects. In essence, the Under Secretary of Health statement on probability is tantamount to establishing no reasonable possibility that her in-service exposure caused her breast cancer. Thus, the Board finds that any deviation from the specific language of 38 C.F.R. § 3.311(c)(1) results in harmless error. There is no reasonable basis for regarding the need for an outside opinion under 38 C.F.R. § 3.311(c)(2). The Board also acknowledges the scholarly articles the Veteran submitted in support of her claim. However, as these articles discuss etiology in general terms and do not discuss the specific facts of her case – in particular her actual exposure level. The Board finds that the articles alone are not sufficient to support the claim of service connection. The only remaining evidence in favor of the Veteran’s claim consists of her own lay statements. As a lay witness, the Veteran is competent to testify to visible or otherwise observable symptoms of disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, she, as a lay witness, is not competent to establish etiology, as such an opinion requires medical training and knowledge on the issue of pathology. In conclusion, considering the lay and medical evidence in this case, the preponderance of the evidence is against the claim for service connection for breast cancer. That is, the Board finds that the Veteran is not shown to be a “radiation-exposed” Veteran and her lifetime radiation exposure is insufficient to likely cause her breast cancer. Moreover, her cancer did not manifest within the first year after her discharge from service and is not otherwise related to service. Thus, as the preponderance of the evidence is against the claim, the benefits sought on appeal must be denied. 38 U.S.C. § 5107(b). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Orie, 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.