Citation Nr: 21029181 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-42 818A DATE: May 12, 2021 ORDER Entitlement to service connection for bladder cancer, to include as due to in-service exposure to ionizing radiation is denied. FINDING OF FACT 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 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 FINDING AND CONCLUSION The Veteran served on active duty from July 1990 to December 1992, to include service in Southwest Asia from May 1991 to September 1991. A Board of Veteran's Appeals (Board) hearing was held in February 2019 via videoconference, a transcript of which is of record. The hearing was before a now-retired Veterans Law Judge. The Veteran was given the opportunity to request another hearing by VA written correspondence in March 2021. The Veteran was notified that if he did not provide a response in 30 days, it would be assumed that he did not want another hearing. The Veteran did not respond to the letter, and the Board will therefore proceed. The Board remanded this matter in December 2019 for further evidentiary development. The case has returned to the Board for appellate review. Entitlement to service connection for bladder cancer, to include as due to in-service exposure to ionizing radiation The Veteran is seeking entitlement to service connection for bladder cancer, claimed as due to ionizing radiation. The Veteran contends in his claim submissions and Board hearing testimony that he was exposed to radiation in July 1991 at Camp Doha. Specifically, the Veteran contends that there was a fire that lead to an explosion of depleted uranium rounds and he was a member of the crew assigned to clean up the explosion site. The Veteran contends that he was not provided with protective equipment for the first two weeks of cleaning and was exposed to radiation at that time. 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 manifested 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). 38 C.F.R. § 3.311 contains specific instructions for the development of claims based on exposure to ionizing radiation. Specifically, 38 C.F.R.§ 3.311 (a) requires the 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 (STRs), 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. 38 C.F.R.§ 3.311(b). The Under Secretary for Benefits shall consider the claim with reference to the factors specified in 38 C.F.R. § 3.311(e) and may request an advisory opinion from the Under Secretary for Health. 38 C.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. 38 C.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's post-service treatment records show that he was diagnosed as having bladder cancer in September 2013 and underwent a transurethral resection of the bladder tumor that same month. Thus, the Veteran has been diagnosed with a disease specifically enumerated as being a radiogenic disease. 38 C.F.R. § 3.311(b)(2)(vii). The Board further notes that there is no question that the incident asserted to have caused his exposure to ionizing radiation occurred as reported. See https://www.nytimes.com/1991/07/12/world/56-soldiershurt-in-kuwait-blast.html; https://www.washingtonpost.com/archive/politics/1991/07/12/scores-hurt-in-explosion-at-us-base-in-kuwait/274e8d79-5f7d-46d7-8eb5-f042a55fb339/. Moreover, the Veteran's DD Form 214 and service personnel records confirm that he was assigned to the US 11th Armored Cavalry Regiment, which was deployed to Camp Doha in June 1991 and was the only US ground combat unit remaining in the Gulf Theater at that time. See https://gulflink.health.mil/du_ii/du_ii_tabi.htm. Thus, there is evidence suggesting that the Veteran may have been exposed to ionizing radiation in service. Bladder cancer 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 Board remanded this matter in December 2019 to refer the claim 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. The Board finds the December 2019 remand directives were substantially complied with. Stegall v. West, 11Vet. App.268 (1998). Pursuant to the Board remand, the AOJ sent a development letter to request the Veteran's DD Form 1141 and/or other records of exposure to ionizing radiation in service from the U.S. Army Dosimetry Center in March 2020. The AOJ received a negative response in April 2020 that they were unable to locate any records for the Veteran. The AOJ sent another development letter in May 2020 and received a response in June 2020 confirming the July 1991 incident. However, no information regarding the Veteran's exposure was included with this response. The AOJ determined that the April 2020 development letter was insufficient as the proper evidence was not included and, given the June 2020 response, it is unclear if the May 2020 letter was received. The AOJ sent another development letter in September 2020 and received another negative response in October 2020 that they were unable to locate any records for the Veteran. Also pursuant to the Board remand, in December 2020 the Director forwarded the Veteran's records to the Under Secretary for Health, for preparation of a dose estimate. In January 2021, the Director, with guidance from the Under Secretary for Health, provided an advisory opinion that there is no reasonable possibility that the Veteran's bladder cancer can be attributed to ionizing radiation exposure during military service. The memorandum further noted that the Veteran's service treatment records and personnel records do not contain evidence of monitoring for occupational exposure to ionizing radiation. It is noted that the Army Dosimetry Center was unable to locate any records of exposure to ionizing radiation for the Veteran. The designee for the Under Secretary for Health noted that the external exposure to radiation from depleted uranium would cause a dose that is barely indistinguishable from natural background radiation and further stated that the Veteran was in a category whose exposure was brief or incidental. A radiation dose of 0.5 rem (total effective dose equivalent) was assigned to the Veteran, which is calculated as 0.5 rem per year x 1 calendar years spent in the Persian Gulf region (1991). The January 2021 advisory medical opinion concluded that it is unlikely that the Veteran's bladder cancer was caused by exposure to ionizing radiation during military service as the Veteran's estimated lifetime total radiation dose (0.5 rem) did not exceed 100 mSv (10 rem) above natural background. The opinion further notes that the Veteran was first diagnosed 22 years after claimed exposure. The Board acknowledges an October 2013 disability benefits questionnaire (DBQ) from the Veteran's VA physician that confirmed the Veteran's diagnoses of bladder cancer and hematuria. However, the VA physician did not provide an opinion at that time. However, the Veteran's VA medical treatment records show an October 2013 postoperative note from the VA physician that the Veteran is quite young for this cancer and opined that the cancer is as likely as not to have been caused by some chemical or environmental exposure. However, the examiner did not provide a rationale to support this opinion nor was it suggested that such exposure was during service. This significantly diminishes the probative value of this opinion. 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 Under Secretary for Health 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 2013 more than more than 20 years after the Veteran separated from service. Since service and post-service treatment records provide no basis to grant the bladder cancer claim, and in fact provide evidence against it, the Board finds no basis to obtain a further 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). MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.