Citation Nr: 21029743 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-11 380 DATE: May 14, 2021 ORDER Entitlement to service connection for reproductive disability is denied. FINDING OF FACT The preponderance of the evidence does not reflect that the Veteran's reproductive disability had its onset in service or is otherwise related to service, to include exposure to radiation. CONCLUSION OF LAW The criteria for service connection for reproductive disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1982 to March 1988. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied the claim of service connection for erectile dysfunction. In June 2020, the Board remanded the matter for further evidentiary development. For the reasons indicated in the discussion below, the Agency of Original Jurisdiction (AOJ) substantially complied with the Board's June 2020 remand instructions by obtaining a radiation dose estimate and forwarding the Veteran's claim to the Under Secretary of Benefits for consideration under 38 C.F.R. § 3.11(c). Thus, no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for reproductive disability Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in three different ways. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, for radiation-exposed veterans who participated in a "radiation risk activity," including onsite participation in a test involving the atmospheric detonation of a nuclear device, there are certain diseases which are presumptively service-connected under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). See 38 C.F.R. § 3.309(d)(3). The enumerated diseases are leukemia (other than chronic lymphocytic leukemia); cancer of the thyroid, breast, pharynx, esophagus, stomach, small intestine, pancreas, bile ducts, gall bladder, salivary gland, urinary tract (including the kidneys, renal pelvis, ureters, urinary bladder, and urethra), bone, brain, colon, lung, or ovary; multiple myeloma; lymphomas (except Hodgkin's disease); primary liver cancer (except if cirrhosis or hepatitis B is indicated); and bronchioloalveolar carcinoma. Second, service connection can be established with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311 if the condition at issue is a "radiogenic disease." The term "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: all forms of leukemia, except chronic lymphatic (lymphocytic) leukemia; any cancer; posterior subcapsular cataracts; non-malignant thyroid nodular disease; parathyroid adenoma; tumors of the brain and central nervous system; and lymphomas other than Hodgkin's disease. 38 C.F.R. § 3.311(b)(2). If a claim is based on a disease other than one of those listed in section (b)(2), VA shall nevertheless consider the claim under the provisions of 38 C.F.R. § 3.311 provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. See 38 C.F.R. § 3.311(b)(4). Under section 3.311, in all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. § 3.307 or 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. Finally, with respect to the third means of establishing service connection for a condition claimed to be due to exposure to ionizing radiation, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory provisions concerning radiation exposure. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (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). As noted previously, certain conditions are presumed to be service-connected when they manifest in "radiation-exposed veterans." 38 C.F.R. § 3.309(d). However, the term "radiation-exposed veterans" applies only to veterans who participated in specific radiation-risk activities, including onsite participation in a test involving atmospheric detonation of a nuclear device; certain service in or near Hiroshima or Nagasaki, Japan; service on the grounds of a gaseous diffusion plant in Paducah, Kentucky, Portsmouth, Ohio or in the area identified as K25 at Oak Ridge, Tennessee; service on Amchitka Island, Alaska; and service that would qualify for inclusion as a member of the Special Exposure Cohort if performed as an employee of the Department of Energy. 38 C.F.R. § 3.309(d)(3). The Veteran has not alleged, and the evidence of record does not reflect, that his service included any of the above circumstances. Therefore, he is not a "radiation-exposed veteran" within the meaning of the regulation, and the associated presumptions are not applicable. Moreover, erectile dysfunction is not among the conditions listed as presumed to be related to ionizing radiation exposure under 38 C.F.R. § 3.309(d). Nevertheless, although the Veteran does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3), he may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if he suffers from a radiogenic disease and claims exposure to ionizing radiation in service. While erectile dysfunction is not considered a radiogenic disease for purposes of 38 C.F.R. § 3.311(b)(2), 38 C.F.R. § 3.311(b)(4) provides if a claim is based on a disease other than one of those listed in paragraph (b)(2), VA shall nevertheless consider the claim under the provisions of this section provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. Here, in March 2016, the Veteran submitted medical articles linking erectile dysfunction and low sperm count to radiation exposure from the U.S. Nuclear Regulatory Commission on the biological effects of radiation, WebMD articles titled "Erectile Dysfunction: Testosterone Replacement Therapy" and "What to Expect From Radiation Therapy," and a Cancer.net article on "Side Effects of Radiation Therapy." Thus, the claim will be considered under the provisions of 38 C.F.R. § 3.311. In this case, at the request of the Director of Compensation Service, the Director of the Post 9/11 Era Environmental Health Program issued an advisory opinion on the Veteran's exposure to radiation in January 2021. The Director of the Post 9/11 Era Environmental Health Program found that it was unlikely that male reproductive organ disability, to include erectile dysfunction, spermatocele, and/or low sperm count were caused by exposure to ionizing radiation during service. The Director noted that the Veteran's occupational specialty in service was that of a machinist mate, and that the Veteran claimed service connection as a result of exposure to ionizing radiation during service from his duties near the reactor compartment aboard the USS Carl Vinson (CVN70) from 1984 to 1987. He reported working in the engine room just outside the reactor compartment and wearing a thermoluminescent dosimeter. Prior to his assignment to the Reactor Division on board the USS Carl Vinson, the Veteran stated he went to the NUPW4 Plant Operations on prototype D1G as part of his education in the Naval Nuclear Power School program. The Veteran's service records included copies of DD Form 1141, Record of Occupational Exposure to Ionizing Radiation, and addendums. The forms showed the Veteran's cumulative total lifetime radiation dose as 00.264 rem, which consisted of exposure during the periods of January 18, 1984 to July 2, 1984 while at the Nuclear Power Training Unit at Ballston Spa, New York, and the periods of August 31, 1984 to June 30, 1985 and July 22, 1985 to June 9, 1987 while on board the USS Carl Vinson (CVN70). The addendums noted a lung scan at Naval Nuclear Power School in Orlando on October 4, 1983 and chest scan at Mare Island Naval Shipyard on March 17, 1988, both of which displayed results less than the minimum detectable activity (MDA). The Director cited to medical treatment records noting that the Veteran was diagnosed with a spermatocele around 1990, approximately seven years after initial exposure to ionizing radiation. He was treated for low testosterone and erectile problems in 1993, approximately nine years after initial exposure. The Director noted that the Veteran is a Caucasian male with a history of smoking. His service records indicated that he had two aunts with cancer, though the types were not specified. Post-service employment information for the Veteran was not provided, and no post-service radiation exposure was reported or noted. The Director reasoned that radiation dose is the prime factor to consider when determining causation of ionizing radiation induced disease. Being in the vicinity of a radiation source does not necessarily mean a significant exposure occurred. Where presumption does not exist, the dose must be determined through direct measurement or reconstruction methodology. Once the dose is determined, the issue of disease causation can be addressed. In this case, the ionizing radiation dose, as recorded by the Navy, is 0.264 rem. The Director also reviewed employment history, the history of exposure to other known carcinogens, any radiation exposure prior to and after service, smoking and other tobacco use history, and any additional information relevant to causes of the Veteran's claimed disease. The Director additionally cited to the Health Physics Society and its position statement PS010-4, Radiation Risk in Perspective, revised in February of 2019, that stated: "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." Since the Veterans' estimated lifetime total radiation dose (0.264 rem) did not exceed 100 mSv (10 rem) above natural background, it was the Director's opinion that, it was unlikely that male reproductive organ disability, to include erectile dysfunction, spermatocele, and/or low sperm count were caused by exposure to ionizing radiation during military service. Accordingly, the Director of Compensation Service adopted this finding and echoed the conclusion that there was no reasonable possibility that the Veteran's male reproductive organ disability, to include erectile dysfunction, spermatocele, and/or low sperm count were caused by exposure to ionizing radiation during military service. In reaching this conclusion, the Director considered the Veteran's probable dose, gender, age at time of exposure, time-lapse between exposure and onset of the disease, the Veteran's history of smoking, his family history, post-service radiation exposure, the January 2021 advisory medical opinion from the Director, and the medical literature submitted by the Veteran. See 38 C.F.R. § 3.311(e) (noting that consideration must be given to (1) "The probable dose, in terms of dose type, rate and duration as a factor in inducing the disease, taking into account any known limitations in the dosimetry devices employed in its measurement or the methodologies employed in its estimation;" (2) "The relative sensitivity of the involved tissue to induction, by ionizing radiation, of the specific pathology;" (3) "The veteran's gender and pertinent family history;" (4) "The veteran's age at time of exposure;" (5) "The time lapse between exposure and onset of the disease; and" (6) "The extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to development of the disease"). In regard to the Veteran's submission of medical literature, the Director noted that none of the submitted articles discussed the Veteran's actual radiation dose, which is the prime factor to consider when determining causation of disease. Thus, the Director's finding is highly probative, as it reflects consideration of the enumerated factors, the advisory opinion, and provides a complete rationale for the conclusion that there was no reasonable possibility that the Veteran's male reproductive organ disability, to include erectile dysfunction, spermatocele, and/or low sperm count, were caused by exposure to ionizing radiation during military service. Hilkert v. West, 12 Vet. App. 145, 149-50 (1998) (the Under Secretary for Benefits (or designee) need not specifically discuss each the six factors in its advisory opinion); Stone v. Gober, 14 Vet. App. 116, 121 (2000) (the Board cannot rely on a "cursory" opinion of the Under Secretary for Benefits which simply repeats the opinion from the Under Secretary for Health); 38 C.F.R. § 3.3111(c)(1)(ii). Since the provisions of 38 C.F.R. § 3.311 are not met, service connection based on the provisions of 38 C.F.R. § 3.311 is not warranted. Aside from the Veteran's contention that his reproductive organ disability is related to his claimed radiation exposure, he has not asserted any other reason for how his disability is related to service. Nevertheless, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee, 34 F.3d at 1043-1044. The Veteran's service treatment records do not contain any notations relating to symptoms, treatment, or diagnosis relating to reproductive disability. His October 1982, June 1982, September 1984, October 1986, and March 1988 Reports of Medical Examinations, and October 1982, June 1982, October 1986, and March 1988 Reports of Medical History contained no notations relating to reproductive disability. The Veteran did not indicate that he had treatment for, symptoms of, or a diagnosis of reproductive disability in the years between service and his post-service diagnosis, and he did not relay a diagnosis of reproductive disability during those years. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis). Post-service records reveal no treatment or diagnosis for reproductive disability, namely, spermatocele, until around 1990, approximately seven years after initial exposure to ionizing radiation. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, is one factor, along with those above, including the normal Reports of Medical Examinations and Reports of Medical History, and the lack of notations relating to symptoms, treatment, or diagnosis relating to reproductive disability in the Veteran's service treatment records, as well as lack of statements indicating continuous symptoms, that can be considered as evidence against the claim. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). To the extent that the Veteran's lay statements suggest a relationship between his reproductive disability and service, this is the type of complex medical issue relating to an internal medical process which extends beyond an immediately observable cause-and-effect relationship as to which lay evidence is not competent. Jandreau, 492 F.3d at 1376, n.4. Furthermore, the Veteran has not asserted any other reason for how his disability is related to service other than his claimed radiation exposure. As there is no evidence indicating that there is reproductive disability that may be associated with active military, naval, or air service, other than the previously discussed radiation exposure, a VA examination is not warranted for this claim. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (a conclusory generalized lay statement alleging nexus between a current disability and service does not meet the standard to warrant a VA examination); McLendon v. Nicholson, 20 Vet. App. 79 (2006). For the foregoing reasons, the preponderance of the evidence is against finding that reproductive disability had its onset in service or is related to service, to include radiation exposure. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.