Citation Nr: 21029579 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 06-10 567 DATE: May 14, 2021 ORDER Service connection for colon cancer, claimed as due to ionizing radiation exposure, for accrued benefits purposes, is denied. Service connection for the cause of the Serviceman's death, claimed as due to ionizing radiation exposure, is denied. FINDINGS OF FACT 1. The serviceman's colon cancer was not related to his exposure to ionizing radiation exposure during service and is not otherwise related to military service. 2. The serviceman died in October 2004; the death certificate lists metastatic colon cancer as his sole cause of death. 3. At the time of his death, the Veteran was not service connected for any disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for colon cancer are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309, 3.311, 3.312. 2. The criteria for entitlement to service connection for colon cancer as the cause of death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.311, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The serviceman was a member of the United States Army National Guard and Army Reserve and had multiple periods of active duty for training (ACDUTRA), to include from February 22, 1958 to August 21, 1958, and from July 1, 1962 to July 15, 1962. He died in October 2004. The appellant is his surviving spouse. The Board of Veterans' Appeals (Board) notes that in prior decisions, the appellant was referred to as a substituted claimant under 38 U.S.C. § 5152A; however, such only applies if the servicemember died on or after October 10, 2008. Accordingly, the claim with regard to service connection for colon cancer is one for accrued benefits. This matter comes before the Board on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue of service connection for status post radical proctocolectomy was initially denied in a December 1998 rating decision. The serviceman attempted to reopen the claim, but reopening was denied in both December 1999 and June 2000. The serviceman perfected his appeal in November 2000 and testified at a hearing before a Veterans Law Judge (VLJ) in December 2002. During the pendency of the appeal, the matter was recharacterized as a claim for colon cancer. In June 2003, the Board denied service connection for colon cancer on its merits. The serviceman appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In September 2003, the Court issued an order vacating the decision, remanding it to the Board. In February 2004 and October 2007, the Board remanded the issues for further development. The appellant testified before a VLJ in March 2008. In May 2008 and September 2014, the appeal was again remanded. In March 2018, the Board sent the appellant a letter informing her that the VLJ who had conducted the March 2008 Board hearing was no longer employed at the Board and therefore unable to issue a final decision on the appeal, and as a result, she had to right to an additional hearing before another VLJ. The appellant did not respond within 30 days, but ultimately, the Board received correspondence from her representative that she did not wish to have an additional hearing and to date the appellant has not indicated otherwise. The matter was subsequently remanded in an August 2018 Board decision. In January 2019, the Board denied the appeal for service connection for colon cancer and service connection for cause of death. The appellant appealed this decision to the Court. In November 2019, based on a Joint Motion for Remand (JMR), the Court vacated the decision, finding that remand was warranted to address the scientific studies and internet articles that had been submitted throughout the appellate period, as well as to obtain a new medical opinion addressing the explicitly raised theory that the serviceman had consumed contaminated water while at White Sands Missile Range (White Sands). In August 2020, the Board remanded the matter for compliance with the JMR. In January 2021, the matter was again remanded for issuance of a corrected supplemental statement of the case (SSOC), per request of the appellant and her representative. Such was provided in February 2021, and matter is once again before the Board. Substantial compliance with the Board's prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was most recently provided in June 2010. The RO associated the Veteran's service and VA and private outpatient treatment records with the claims file. Following the May 2008 Board remand, efforts were undertaken to obtain complete service treatment records, determine the Veteran's individual periods of active service other than ACDUTRA, and to obtain morning reports from the serviceman's unit during the period of his ACDUTRA from July 1, 1962 to July 15, 1962, or any other relevant records which would provide information about whether he was sent to White Sands during a period of ACDUTRA. Service treatment records were obtained. Although numerous efforts were taken to verify the period of service requested, it was unable to be verified and morning reports were not obtained. However, the Veteran's presence at White Sands for one day during this time period has been conceded, based on lay statements from several other members of the unit indicating that they had spent a day at White Sands between July 1, 1962 and July 15, 1962. Dose estimates have been made on this basis. The Board concludes that any further remands for unit records are unwarranted because they would not result in any potential benefit flowing to the appellant. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). Relatedly, in March 2018, the appellant indicated that additional development should be undertaken to ascertain whether her late husband had been issued a badge to measure radiation exposure while at White Sands. Although this contention has not specifically been developed, such development is not found to be appropriate at this time. Notably, the serviceman has never reported that he was given a badge, but rather, suggested that badges had been provided to members of his unit. The appellant appears to have been referring to a contention made by her representative during a Decision Review Office (DRO) hearing in November 2005, when the representative suggested that the results of the unit members badges should be considered in providing the serviceman's dose estimate. However, as will be discussed in greater detail below, any badges issued during this time would have been for simulation purpose only. Accordingly, further development of this is unwarranted. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The appellant's representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection for Colon Cancer Service connection will be granted if it is shown that the serviceman suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997). First, there are certain types of cancer which will be presumptively service connected in a radiation-exposed Veteran. See 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). A "radiation-exposed" Veteran is someone who participated in a "radiation-risk activity." 38 C.F.R. § 3.309(d)(3)(i). The term "radiation-risk" activity means onsite participation in a test involving the atmospheric detonation of a nuclear device, participation in post-World War II occupation of Hiroshima and Nagasaki from 1945-46, internment as a prisoner of war in Japan during World War II, etc. 38 C.F.R. § 3.309(d)(3)(ii)-(v). Notably, presumptions do not generally apply to periods of ACDUTRA or INACDUTRA unless Veteran status is established. Biggins v. Derwinski, 1 Vet. App. 474 (1991). Here, the Appellant served only on ACDUTRA, not active duty, and is not service connected for any condition, and hence is not considered a Veteran for VA purposes at this time. However, a "radiation-exposed veteran" includes a veteran who while serving on active duty, or an individual who while a member of a reserve component of the Armed Forces during a period of active duty for training or inactive duty for training, participated in a radiation-risk activity." 38 C.F.R. § 3.309(d)(3)(i). As such, the serviceman is eligible to receive service-connection under this presumption based on his ACDUTRA service. Second, 38 C.F.R. § 3.311(b) includes a list of "radiogenic diseases," including colon cancer and "any other cancer," which may be service connected in Veterans exposed to ionizing radiation provided that certain conditions specified in that regulation, including dates of manifestation, are met. 38 C.F.R. § 3.311(b) further states that, if the Veteran has one of the radiogenic diseases, a dose estimate should be obtained and the case will be referred to the VA Under Secretary for Benefits for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the Veteran's disease resulted from radiation exposure during service. Third, direct service connection can be established for a disorder claimed to be a result of exposure to ionizing radiation by "show[ing] that the disease or malady was incurred during or aggravated by service, a task which includes the difficult burden of tracing causation to a condition or event during service." See Combee v. Brown, 34 F.3d 1039, (Fed. Cir. 1994). The appellant has consistently contended that her husband was exposed to ionizing radiation when he was at the White Sands while on a period of ACDUTRA from July 1, 1962 to July 15, 1962. She contends that because of this exposure, he subsequently developed and was diagnosed with colon cancer, or colorectal cancer, which ultimately resulted in his death. The evidence does not support that the serviceman is entitled to service connection for colon cancer on a presumptive basis under 38 C.F.R. § 3.309. The Veteran did not serve on-site at White Sands during nuclear testing Operation Trinity, which occurred, July 16, 1945 through August 6, 1945, or during the six-month period following this testing. 38 C.F.R. § 3.309. In June 1998, the serviceman completed Radiation Risk Activity Sheets, in which he reported witnessing 5 to 6 tests per day. He recalled that some unit members were issued a film badge, that everyone was given eye-protection goggles, and that they were all seated on bleachers viewing "test shots." He remembered dust clouds from the tests coming right up to where he was seated. He reported being taken to the ground zero area and ordered to dig fox holes along the perimeter line, and that he ate in that area. He estimated that he had been in the explosion area for approximately 8 hours, and that he returned the next day for more tests. In a subsequent statement from June 1998, the serviceman reiterated that several unit members were given badges and told that they were used to register radiation. In September 1998, a request was placed with the Defense Nuclear Agency to confirm this testing and the unit's participation in it. In October 1998, the Defense Threat Reduction Agency (DTRA) provided a Memorandum stating that, except for Project Trinity in 1945, all continental atmospheric nuclear testing was conducted at the Nevada Test Site. The Memorandum suggested that this may have been a simulated nuclear exercise, and that in simulations of this nature, all aspects of the exercise, including clothing worn, film badges, and special missions, etc., were the same as at an actual detonation. However, this detonation was non-nuclear and would result in no potential for exposure to radiation. Furthermore, it was noted that available Army records did not document the serviceman's participation in U.S. atmospheric nuclear testing, and that following search of dosimetry data, there were no records of radiation exposure for him. Accordingly, the serviceman is not entitled to presumptive service connection for colon cancer based on radiation exposure under 38 C.F.R. § 3.309. The serviceman, and now the appellant, continued to pursue this claim, contending that he was exposed to radiation based on digging foxholes and using latrines at ground zero of the site of the prior Trinity testing. During the December 2002 Board hearing, the serviceman contended that he was exposed to radioactive Trinitite substance in the ground, and recalled that he had found "green patches of grass" that he was later told was contaminated, but that he had already "touched it, smelled it, tasted it, and whatever." He reported that he also drank water that he was later told was contaminated. Since the serviceman's colon cancer is classified as a "radiogenic disease," and he has contended that this disease was the result of exposure to ionizing radiation during service, the claim has been further developed under 38 C.F.R. § 3.311. As such, dose estimates have been obtained and referral to the VA Under Secretary for Benefits has be completed. The first dose estimate was completed in January 2012, however, this was found inadequate in the September 2014 Board remand. In a Memorandum from the Co-Director, Environmental Health Program, the serviceman was assigned a dose of 1 Roentgen Equivalent Man (rem) for the 1 day he spent there, based on his visit to the Trinity test site more than 16 years post detonation. It was noted that this provided great benefit of the doubt to him, without overstating what his actual exposure was more likely to be, which was estimated as probably less than 0.1 rem. The Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) calculated a 99-percentile value for the probability of causation of 1.18 percent for colon cancer. Thus, the Co-Director opined that it was unlikely that the serviceman's metastatic colon cancer could be attributed to ionizing radiation exposure while in military service. On this basis, the advisory opinion from the Director of Compensation Service provided a negative nexus, concluding that there was no reasonable possibility that the metastatic colon cancer was from exposure to radiation in service. However, the Board determined that this was inadequate, finding that the dose estimate must include consideration of actual ingestion of the Trinitite substance, per the serviceman's allegation. In March 2017, the DTRA provided a Memorandum which essentially mirrored the findings of the October 1998 Memorandum, stating that records do not document the serviceman's participation in U.S. atmospheric nuclear testing. Accordingly, such did not fulfill remand directives. A new dose estimate was obtained in February 2018. This Memorandum was provided by the Deputy Chief Consultant, Post Deployment Health Service. However, this, opinion was subsequently found inadequate by the Court, based on the November 2019 JMR. The assigned dose of 1 rem was continued, based on the serviceman's visit to the Trinity test site for one day more than 16 years post-detonation. Regarding Trinitite ingestion, it was noted that it was doubtful that much could have been ingested, since Trinitite is a rock. The dose from potential ingestion of this radioactive material was likened to that of eating several bananas, and additional radiation dose from ingestion of Trinitite was found to be extremely small, and was assigned 0.1 rem, although it was likely zero. The IREP of the NIOSH calculated a 99-percentile value for the probability of causation of 2.38 percent for colon cancer. Thus, the Deputy Chief Consultant opined that it was unlikely that the serviceman's metastatic colon cancer could be attributed to ionizing radiation exposure while in military service. On this basis, the Director of Compensation Service opined that there was no reasonable possibility that the Veteran's metastatic colon cancer resulted from radiation exposure in service. However, as noted previously, the Court determined that further remand was still necessary in order that the dosage estimate account for ingestion of Trinitite as well as ingestion of contaminated water at White Sands. Furthermore, in rendering a determination, the Under Secretary for Health was directed to consider the various scientific studies and internet articles that had been provided by the serviceman and appellant throughout the appeal and associated with the claims record. Accordingly, a new dose estimate was provided by the Director, Post-9/11 Environmental Health Program in an October 2020 Memorandum. The director noted review of the entire claims file and of the serviceman's contentions that he had ingested and was otherwise exposed to Trinitite, and that he ingested contaminated water at White Sands. In the Memorandum, he reported that the scientific studies and internet articles provided had been reviewed. It was noted that upon review, the team did not find anything different from that which had been discussed in previous opinions. He stated that their professional knowledge of radiation, physics, biology, and safety remained in the forefront of their process. The director continued to explain that the allegations relating to cancer and disease causation in these articles were not supported by facts and discussions of the specific radiation dose that the serviceman may have received. The radiation dose is the prime factor to consider when determining causation of disease, and unless a presumption exists, mere exposure to radiation cannot be considered causal. Rather, the dose must be determined through direct measurement or reconstruction methodology. Once this dose is determined, then the issue of disease causation may be addressed. The director further noted that statements in the internet articles regarding cleanup of Trinitite in the 1950's would have occurred prior to the serviceman's one-day deployment to the Trinity site, and that these articles explain that there was fencing around the former ground zero site to prevent unauthorized access. The Memorandum noted that dosimetry information was available for 800 of the approximately 1,000 individuals who either participated in Project Trinity activities or visited the test site between July 16, 1945, and December 31, 1946. Fewer than 20 of these participants received doses greater than 5 rem in any period. Most of the larger doses were accrued by personnel who had early approaches to ground zero and who monitored the fallout north of the test site on shot day. Regarding dose estimation, the serviceman was afforded a dose of 5 rem, which considered ingestion of Trinitite. This dosage was identified as the annual limit for occupational dose and was provided to allow him "great benefit of the doubt." Trinitite was described as a mildly radioactive substance left behind by the nuclear detonation in 1945. The director commented that it was doubtful that the serviceman could have ingested much of Trinitite, since the substance is a rock. Following hours of researching Trinitite and its radioactive properties, it was noted that the radionuclides in Trinitite are very small amounts of Potassium, Cesium, and Strontium, and that a dose from this potential ingestion would be like eating several bananas. As to contaminated water, it was further noted that Trinitite is not soluble in water. Rather, following consumption of Trinitite, it would have passed through his gastrointestinal system and been expelled in a matter of few days, without imparting additional radiation dose above the assigned 5 rem. It was further noted within the Memorandum that in position statement PS010-4, Radiation Risk in Perspective, revised in February 2019, from the Health Physics Society, "The average annual effective dose from natural background radiation in the United States is about 3 mSv [0.3 rem]. A person might accumulate an effective dose from natural background radiation of about 50 mSv [5 rem] in the first 17 years of life and about 250 mSv [25 rem] during an average 80-year lifetime. Substantial and convincing scientific data show evidence of health effects following high-dose exposures (many multiples of natural background). However, below levels of about 100 mSv [10 rem] above background from all sources combined, the observed radiation effects in people are not statistically different from zero." Based on this, the director concluded that since the lifetime total radiation dose of 5 rem did not exceed 10 rem above natural background, it was unlikely that the serviceman's colon cancer could be attributed to ionizing radiation exposure while in military service. In October 2020, the Director of Compensation Service issued an Advisory Opinion, concluding that based on the scientific evidence referenced in the memorandum from the VA Under Secretary for Health, and review of the evidence in its entirety, it is unlikely that the colon cancer was caused by exposure to ionizing radiation while in military service. Following this, a SSOC was issued in October 2020. However, in the January 2021 Board remand, it was noted that this SSOC contained conflicting statements regarding the serviceman's in-service radiation exposure, and that a new SSOC should be provided, noting that exposure to ionizing radiation while in-service had been conceded and established. Such was provided in a February 2021 SSOC. In March 2021 correspondence from the appellant, she claims that serviceman's consumption of contaminated water through a faucet was not addressed in the February 2021 SSOC. She further suggested that the serviceman's consumption of contaminated water negates the 5-rem dose estimate, contending that it is unknown how much water he may have ingested while at White Sands. Although she has correctly stated that serviceman's water consumption was not explicitly mentioned in the SSOC, this does not render it inadequate. Rather, the SSOC references the October 2020 Advisory Opinion from the Director of Compensation Services, which was based upon the October 2020 Memorandum. As described above, consideration of the serviceman's contaminated water consumption was considered in providing a dose estimate. Although the exact amount of water consumed cannot be known, this 5-rem dose estimate was significantly higher than the previous dose estimates. It was provided "to allow great benefit of doubt" to the serviceman and was said to account for all potential exposure. In this correspondence, the appellant also took issue with a statement in the February 2021 SSOC noting that the cancer did not become manifest to a compensable degree within the presumptive period of one year following the serviceman's date of release from service. She offered that such does not prevent a finding that cancer later developed because of the exposure. The Board notes that this reference to a presumptive period in the SSOC was not meant to imply that cancer developing more than one-year after service is precluded from being attributed to radiation exposure. Rather, the statement indicates that if the cancer did develop within the one-year period following service, service-connection could potentially be awarded on a presumptive basis. However, since the serviceman's cancer did not develop within this timeframe, presumptive entitlement on that basis is not applicable. Therefore, service connection for colon cancer as due to ionizing radiation exposure is not warranted under 38 C.F.R. § 3.311. Service connection can still be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The serviceman died from metastatic colon cancer, as stated on his death certificate. As discussed extensively above, exposure to ionized radiation while in-service has been conceded. Accordingly, he has met the first two requirements necessary for service-connection. Regarding a nexus opinion, the serviceman has not asserted, and the evidence of record does not otherwise suggest, that this condition manifested during service, or is attributed to service aside from radiation exposure. In his December 2002 Board hearing, the serviceman reported that his cousin had also been a member of his unit at White Sands. He reported that they both developed colon cancer around the same time, noting that otherwise there was no history of colon cancer in their family. He suggested that this indicated the radiation exposure had caused them both to develop colon cancer. In May 2000, March 2004, August 2004, and September 2004, private medical opinions were provided. One of these physicians specifically considered that both cousins had developed the same type of cancer. However, none of these medical opinions are adequate to establish service-connection. Rather, each physician indicated that they could not affirmatively state that radiation exposure caused the colon cancer. In the first May 2000 opinion, the physician reported that it was conceivable that colon cancer could possibly be related to this history based on the reported past exposure to radiation. A second opinion from May 2000 echoed this finding. In the March 2004 opinion, the physician noted that while he could not draw a conclusive link between exposure and colon cancer, he also could not rule out a possible connection. In the August 2004 and September 2004 opinions, a different physician noted that the serviceman had his cousin were both as White Sands and exposed to radiation, stating that "while this is not conclusive in regards to causation, certainly radiation exposure is certainly a known risk factor for solid tumors." She noted that "Certainly it would be interesting for the Army to look into case rate of colon in relation to exposure to Trinitite." However, she did not opine as to the likelihood that such exposure was causal. Accordingly, these opinions are of minimal probative value, and do not outweigh the specific findings discussed above that radiation exposure did not cause the colon cancer. Although the servicemen, and then the appellant, have consistently reported their beliefs that the colon cancer was related to radiation exposure throughout the appellate period, a probative medical opinion that supports such a relationship has not been provided. The appellant has not submitted evidence that she possesses specified knowledge and training required to render a nexus opinion on a cause and effect relationship unobservable to a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Therefore, the preponderance of the evidence is against the claim and service connection for colon cancer, as due to ionized radiation exposure, is denied. Service Connection for Cause of Death As discussed above, the appellant contends that the serviceman's colon cancer was the result of in-service exposure to ionizing radiation. On this basis, she seeks to establish service connection for the cause of the serviceman's death. To establish entitlement to service connection for the cause of the serviceman's death, the evidence must show that a disability either incurred in or aggravated by his military service, or which was proximately due to, the result of, or aggravated by a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.310, 3.312. A service-connected disability is the principal cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Here, the serviceman's death certificate identified metastatic colon cancer as his sole cause of death. As the Board has denied service connection for colon cancer, as due to ionizing radiation exposure in the findings above, service connection for the cause of the serviceman's death is not warranted. Therefore, service connection for cause of death is denied. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.P. Faris 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.