Citation Nr: 21028944 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-22 041 DATE: May 12, 2021 ORDER Entitlement to service connection for carcinoid syndrome/carcinoid tumor (also claimed as liver cancer), to include as due to radiation exposure, is denied. Entitlement to service connection for a balance issue/dizziness, to include as secondary to cancer, is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran's liver cancer did not manifest in service or within one year after discharge from service and is not otherwise attributable to service. 2. The Veteran's balance issues/dizziness did not manifest in service or within one year of discharge from service and is not otherwise attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for carcinoid syndrome/carcinoid tumor (also claimed as liver cancer), to include as due to radiation exposure, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for service connection for a balance issues/dizziness, to include as secondary to cancer, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from September 1972 to September 1974. These issues come before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The liver cancer and balance issue claims were remanded by the Board in July 2018 for additional development, which was accomplished in November 2020. A review of the record shows substantial compliance with the Board's prior remand regarding the Veteran's liver cancer and balance issue claims; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection 1. Entitlement to service connection for carcinoid syndrome/carcinoid tumor (also claimed as liver cancer), to include as due to radiation exposure. The Veteran contends that his liver cancer is due to exposure to radiation during service. In his Notice of Disagreement, the Veteran stated he believes his cancer is from his exposure to the environmental hazards at the White Sands Missile Range in New Mexico, which is a nuclear facility. According to his DD 214 Form, his Military Occupational Specialty (MOS) indicates he was Pershing missile crewman. During the Board hearing, the Veteran testified that the missiles were armed with nuclear warheads. His claim for compensation was received by VA in February 2013. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for disability based on exposure to ionizing radiation can be demonstrated by three different methods. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service-connected when they occur in "radiation-exposed Veterans." 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). This category of "radiation-exposed Veterans" includes those Veterans who participated in a "radiation-risk activity." "Radiation-risk activity" is defined to mean: onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war in Japan that resulted in an opportunity for exposure to ionizing radiation comparable to that of Veterans who were in the occupation of forces of Hiroshima or Nagasaki during the period August 6, 1945, and ending on July 1, 1946; or certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky; Portsmouth, Ohio; and Oak Ridge, Tennessee; or, in certain circumstances, service on Amchitka Island, Alaska. 38 C.F.R. § 3.309 (d)(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) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, 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 gland, 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)(2). Second, "radiogenic diseases" may be service connected, provided that certain conditions are met, pursuant to 38 C.F.R. § 3.311. To consider a claim under section 3.311, the evidence must show the following: (1) the Veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and (3) such disease first became manifest within a period specified by the regulation. 38 C.F.R. § 3.311 (b). If any of the foregoing three requirements has not been 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: (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). For a claimant to fall initially within the purview of § 3.311, he or she must satisfy four criteria: (1) The presence of a radiogenic disease must be "established"; (2) the person to whom the regulation is to apply must have had "service"; (3) the radiogenic disease must not have been one covered as presumptively service connected under § 3.307 and § 3.309 (otherwise the claimant would be entitled to presumptive service connection) and must have been manifested within the applicable presumptive period under § 3.311(b)(5); and (4) the claimant must contend that the radiogenic disease was the result of exposure to ionizing radiation in service. When these four requirements are satisfied, as they have been in this case at hand, VA has the obligation to make an "assessment" of the radiation-exposure dose experienced by the veteran in service, and then, dependent upon the result of that assessment, a further obligation to fulfill other developmental and procedural steps. The regulation does not make clear what the "assessment" contemplates except to state that "a request will be made for 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 medical records, and other records that may contain information pertaining to the veteran's radiation dose in service." 38 C.F.R. § § 3.311 (a)(2)(iii). When exposure to radiation has been verified, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311 (c); see Wandel v. West, 11 Vet. App. 200, 204-05 (1998). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311 (e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. §§ 3.311 (b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is "at least as likely as not" that the disease resulted from in-service radiation exposure or whether, under § 3.311(c)(1)(ii), there is "no reasonable possibility" that the disease resulted from in-service radiation exposure. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). With regard to a present disability, the evidence shows that the Veteran has been diagnosed with liver cancer. Thus, the first element of service connection is established. Service Connection based on Exposure to Ionizing Radiation The first method of establishing service connection on a presumptive basis is not available to the Veteran. The Board realizes that liver cancer is included in the list of presumptive diseases for veterans exposed to ionizing radiation. 38 U.S.C. § 1112 (c), 38 C.F.R. § 3.309. However, the Veteran is not considered a "radiation-exposed veteran," as defined by 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 (d), and as such, presumptive service connection under these provisions is precluded. The term "radiation-exposed veteran" means a veteran who participated in a "radiation-risk activity." 38 U.S.C. § 1112 (c)(3)(A); 38 C.F.R. § 3.309 (d)(3)(i). The term "radiation-risk activity" has a specific definition, which is outlined above. See 38 U.S.C. § 1112 (c)(3)(B); 38 C.F.R. § 3.309 (d)(3)(ii). Since the term "radiation-risk activity" does not include working as a Pershing Missile crewman at White Sands Missile Range, presumptive service connection is not warranted in this case, regardless of the fact that liver cancer is included in the list of presumptive diseases. Additionally, the evidence of record demonstrates that the Veteran's liver cancer is not a "radiogenic disease" for purposes of presumptive service connection, as he has been diagnosed with metastatic liver cancer and not primary liver cancer. Therefore, presumptive service connection would not be warranted. Even assuming the Veteran's liver cancer qualified as a "radiogenic disease" under 38 C.F.R. § 3.311 (b), this regulation does not create a presumption of service connection, but merely accords the claimant special processing of the claim. Such processing "still requires a case-by-case determination of service connection for each claim based on one of the listed diseases." Ramey, 120 F.3d at 1245. In this case, DD 1141 forms or other evidence of measured exposure to ionizing radiation during service were not available. A November 2020 letter from the Army Dosimetry Center also states that no radiation exposure data was found for the Veteran. Therefore, referral to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311 (c) is not warranted. The Veteran testified that his duties while stationed at White Sands, New Mexico consisted of "programing." He reported that he worked around large computer monitors that emitted more radiation behind them than they did in front. The Veteran testified that the monitors were all around him. He also testified that he rode his motorcycle all over the test range. When question as to what type of exposure he had when riding the motorcycle, the Veteran reported he had no idea what he was exposed to. He further testified that he was exposed to radiation while working around nuclear tipped missiles. The Board finds there is no competent evidence of the Veteran's exposure to ionizing radiation while on active duty. The Veteran has not submitted any evidence demonstrating that he was exposed to ionizing radiation as a result of his work around computer monitors. The Veteran's testimony that he was near nuclear tipped missiles also does not establish exposure to ionizing radiation. There is no competent evidence to support these allegations. As a lay person, the Veteran is not competent to be able to determine the amount and extent of exposure to ionizing radiation from computer monitors or working near nuclear tipped missiles. There is no competent evidence demonstrating the Veteran had exposure to ionizing radiation and/or other toxic substances while ridding his motorcycle. The Veteran's own testimony is that he had no idea what he might have been exposed to. The Board finds that the Veteran was not exposed to ionizing radiation during active duty. Therefore, service connection based on the provisions for radiogenic diseases must be denied. Service Connection on a Direct Basis The Board also finds that the Veteran's claim falls under a direct theory of service connection. A review of the service treatment records (STRs) show no diagnosis or treatment for liver cancer. Clinical examination was normal on entrance and separation. A review of the post-service VA and private treatment records note complaints and treatment for liver cancer beginning in May 2002, over 28 years after discharge. Associated with the claims file is a statement dated in April 2018 from a private physician. The author had been treating the Veteran for metastatic carcinoid tumor which was originally discovered in December 2001. It was noted that the tumors are slow growing and the cancer may have been present a long time prior to the diagnosis. It was further noted that the exact etiology of carcinoid tumors were unknown. To the best of the physician's knowledge, the Veteran did not have any other risk factors which may have caused the cancer. The author wrote that he was aware that the Veteran had the possibility of being exposed to radiation during his service. The Board finds the April 2018 statement is insufficient to link liver cancer to active duty on a direct basis. The opinion is speculative in that it notes that the cancer "may" have been present a long time prior to the diagnosis. Service connection cannot be granted based on speculative evidence. To the extent that the opinion links the cancer to active duty based on exposure to ionizing radiation, the Board finds it is without probative value as it is based on an inaccurate factual background. As set out above, the Board has determined that the Veteran was not exposed to ionizing radiation during active duty. There is no competent probative evidence linking liver cancer to military service on a direct basis. The Veteran has not identified any symptoms related to his liver cancer that were present during active duty. There is no evidence of complaints related to, treatment for, or diagnoses of liver cancer during active service, and there is no indication of symptoms, treatment, or diagnoses of liver cancer until May 2002. Continuity of symptomology has not been established. Because the weight of the evidence demonstrates that the Veteran does not have confirmed exposure to ionizing radiation, there is no duty to provide a VA medical examination. The Board finds that the weight of the evidence demonstrates no in-service exposure to ionizing radiation, no symptoms, injury, or disease related to liver cancer in service, and no continuity of symptoms since service separation. Thus, there is no reasonable possibility that a VA opinion could aid in substantiating the claims for service connection because there is no relevant injury, disease, event, or exposure in service to which any current disabilities could be related by competent opinion. See 38 U.S.C. § 5103A (a)(2)(2012) (VA "is not required to provide assistance to a claimant... if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159 (d) (2018) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"); see also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service; where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran testified at his Board hearing that he was exposed to ionizing radiation while (1) working in environmental hazards at White Sands Missile Range, and (2) working near nuclear warheads as part of his duties as a Pershing Missile crewman. While the Veteran may be credible to describe the particular symptoms which he experiences, determining the exact nature and diagnosis of his liver cancer requires specialized testing and medical knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the competent evidence of record demonstrates that the Veteran was not exposed to ionizing radiation during his active duty service. Accordingly, his statements are entitled to little probative value. Without competent and credible evidence of an association between the Veteran's liver cancer and his active duty service, service connection is not warranted. The benefit-of-the-doubt rule does not apply, as the preponderance of the evidence is against the claims. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to service connection for a balance issues/dizziness, to include as secondary to cancer, The Veteran contends that his balance issues are the result of his liver cancer medication. Service connection may be also established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The question for the Board is whether the Veteran has a current disability that began during service or is at least likely as not related to an in-service injury, event, or disease. The Board concludes that while the Veteran has documented balance issues, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Specifically, the STRs do not include complaints of, diagnosis of, or treatment for any balance issues or dizziness. Clinical examination was normal on entrance and separation. Further, the Veteran has not specifically alleged in-service incurrence of balance issues or dizziness nor has he alleged continuity of symptomology from active duty to the present. As such, there is no duty to provide a VA medical examination since there is no reasonable possibility that a VA opinion could aid in substantiating the claim for service connection because there is no relevant injury, disease, event, or exposure in service to which any current disability could be related by competent opinion. See 38 U.S.C. § 5103A (a)(2)(2012). Regarding secondary service connection, the Veteran is not service connected for liver cancer. Therefore, service connection on a secondary basis is not warranted. There is no indication in the record that any balance issue or dizziness is directly related to service, and the Veteran explicitly claims service connection on a secondary basis. As noted above, service connection for liver cancer has not been established. Therefore, service connection for balance issues/dizziness, on a secondary basis due to liver cancer, is not warranted. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran contends that his balance issues are the result of his liver cancer medication. While he may be credible to describe the particular symptoms which he experiences, determining the exact nature and diagnosis of his balance issues requires specialized testing and medical knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the competent evidence of record demonstrates that the Veteran did not experience any balance issues or dizziness during his active duty service. Accordingly, his statements are entitled to little probative value. Without competent and credible evidence of an association between the Veteran's balance issues and dizziness and his active duty service, service connection is not warranted. The benefit-of-the-doubt rule does not apply, as the preponderance of the evidence is against the claims. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND Entitlement to service connection for sleep apnea. The Veteran contends that his sleep apnea was caused by and aggravated by his time in service while stationed at White Sands Missile Range in New Mexico. The Board notes that this matter was remanded in July 2018 for a VA examination and medical opinion regarding the etiology of the sleep apnea. The examiner was directed to address the Veteran's lay statements regarding potential sleep apnea symptomology which might have been present during active duty. The Veteran underwent a VA examination in October 2020. He was diagnosed with central sleep apnea. The examiner then gave a negative opinion that the sleep apnea was due to military service. The examiner noted that while the Veteran reported in-service sleep difficulties, there were other diagnoses and incidents that could have caused him not to sleep. In addition, the examiner noted that the sleep apnea happened at a much later date since there was a gap in treatment records from service until a 2012 sleep study noted a sleep apnea diagnosis. Furthermore, the examiner noted that there was no correlation between in-service sleep difficulties and sleep apnea. Finally, the examiner noted that there was no evidence of chronicity of care since the claims file was completely silent since service. No other opinions or rationale were provided. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner found there was a lack of chronicity of care for sleep apnea after discharge. The Board notes that chronicity of symptomology and not chronicity of care is a determining factor. Significantly, the examiner failed to adequately reconcile her opinion with the Veteran's lay statements concerning his in-service sleep difficulties and continuous symptoms since service. He testified that he felt tired during active duty and this tired feeling remained to the represent. The clinician did not address this symptomology. The Board notes the Veteran reported problems with sleep on his exit examination. In addition, the examiner failed to provide an adequate alternative etiology for the Veteran's in-service sleep difficulties. Finally, the examiner failed to provide a rationale for her opinion that there was no correlation between the in-service sleep issues and sleep apnea. Since the October 2020 VA examination is inadequate for adjudicative purposes, the Board finds that there has not been substantial compliance with its previous remand directives. As such, this matter must be remanded for an addendum VA medical opinion that addresses all the evidence of record, including the Veteran's lay statements concerning continuous sleep issues since service. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. Once the above has been completed to the extent possible, obtain an addendum opinion regarding the nature and etiology of the Veteran's sleep apnea from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file and note in the examination report that the claims file was reviewed. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one (or telehealth interview, if an in-person examination is not feasible). Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether it is as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea manifested in or is otherwise related to service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. (Continued on the next page) A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.