Citation Nr: 21031499 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-35 031 DATE: May 24, 2021 ORDER Entitlement to service connection for prostate cancer is denied. FINDING OF FACT 1. The Veteran has a current diagnosis of prostate cancer. 2. The objective evidence of record shows the Veteran did not participate in "radiation-risk activity," as defined by VA regulations, and the weight of the evidence does not establish exposure to ionizing radiation. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from October 1958 to September 1961. 1. Entitlement to service connection for prostate cancer The Veteran contends that he was exposed to radiation from radar equipment during active service which caused him to later develop prostate cancer. After a thorough review of the record, the Board finds that entitlement to service connection for prostate cancer is not warranted. Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all 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 a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service; (3) and a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for a disability attributable to exposure to ionizing radiation during service will be presumptively granted. 38 C.F.R. § 3.309(d). Service connection can be demonstrated by three methods: (1) Under 38 C.F.R. § 3.309(d), if the veteran is radiation-exposed and diagnosed with one of the 15 types of cancer, including prostate cancer, which are presumptively service connected; (2) under 38 C.F.R. § 3.311(b), if the veteran is diagnosed with a radiogenic disease and certain conditions are met; or (3) by establishing the elements for direct service connection. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). A radiation-exposed veteran is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who, while serving on active duty or on active duty for training or inactive duty training, 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, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. Radiation-risk activity also includes certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio, and Oak Ridge, Tennessee; in certain circumstances, service before January 1, 1974, on Amchitka Island, Alaska if, during such service, the veteran was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests; or service in a capacity which, if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000. See 38 C.F.R. § 3.309(d)(3)(ii). Second, radiogenic diseases will be service connected provided certain processing conditions are met. 38 C.F.R. §§ 3.303(d), 3.311. Pursuant to 38 C.F.R. § 3.311, when it is determined that: (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 regulations, a request for available records concerning the veteran's exposure to radiation will be made and the case will be referred to the Under Secretary for Health 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. 38 U.S.C. § 501; 38 C.F.R. § 3.311(b). The term radiogenic disease means a disease that may be induced by ionizing radiation. 38 C.F.R. §§ 3.311(b). The diseases listed in 38 C.F.R. § 3.309(d) are diseases in which the VA has determined that a positive association with radiation exposure exists. For cancer, the disease must have manifested five years or more after exposure. 38 C.F.R. § 3.311(b)(5). This section does not provide presumptive service connection for radiogenic diseases, but only outlines a procedure to be followed for adjudication purposes. Medical opinions are ultimately the criteria upon which service connection rests under this regulation. The Board notes that in its April 2020 decision, it remanded this claim for referral to the Under Secretary for Health. However, since the evidence does not support that this Veteran was exposed to ionizing radiation, the AOJ did not forward this claim to the Under Secretary for Health, having already obtained dose information from the United States Air Force. The Board finds that the AOJ acted in conformance with regulation. The Veteran underwent a VA examination in January 2018. The examiner confirmed that the Veteran had previously undergone removal of the prostate in 1993 and radiation for recurrence in 2004, and that the Veteran's current status for prostate cancer was active. Accordingly, the Veteran meets the first element under Shedden. The Veteran contends that he was exposed to radiation during active service. In one correspondence, he notes that he travelled to multiple bases in locations including Alabama, Mississippi, North Dakota, Michigan, Idaho, and in particular to Houma, Louisiana, to work on radar systems. The Veteran's personnel records confirm the Veteran's statements that he was part of a team that worked on development of radar systems. The Veteran contends that while working on a radar system at the base at Houma, that there was an explosion and he was exposed to radiation as a result. The Veteran states that shortly thereafter he developed burns, nose bleeds, and claims that he later developed prostate cancer as a result of exposure to radiation from radar systems. The Veteran has also submitted numerous medical articles and informational excerpts from medical websites. One such submission from the National Institutes of Health National Cancer Institute notes that ionizing radiation is high-energy and has been shown to damage DNA and cause cancer; it includes examples like radon, X-rays, and gamma rays. It states that "lower-energy, non-ionizing forms of radiation such as visible light and the energy from cell phones and electromagnetic fields, do not damage DNA and have not been found to cause cancer." The Veteran included an excerpt from VA's website describing ionizing radiation as "high-energy" radiation with examples of sources as nuclear weapons handling and detonation, depleted uranium, radioactive material, calibration and measurement sources, and X-rays. Under non-ionizing radiation, the VA site includes "low-energy radiation" like sunlight, microwaves, radio frequencies, radar, and sonar. The Veteran handwrote, "60 MW?" on the page, presumably referencing that the radar system he worked on was a 60-megawatt radar facility. The Veteran here does not meet the criteria to be considered a radiation-exposed veteran as defined by 38 C.F.R. § 3.309(d)(3). The Veteran did not serve during the World War II era or work in the locations delineated in the regulations at gaseous diffusion plants, with nuclear material, or nuclear testing, or otherwise. The evidence of record does not support that the Veteran was exposed to ionizing radiation, accordingly, service connection for a radiogenic disease pursuant to 38 C.F.R. § 3.311 is not available. That leaves consideration under the direct theory of entitlement per Combee. The Veteran's service treatment records note in November 1960 a three to four-week period of nose bleeds. The Veteran's separation medical examination does not note exposure to ionizing radiation or nuclear material, nor note a history of prostate cancer during service. The AOJ obtained a memorandum from the United States Air Force (the Veteran's branch of service) Chief, Radiologic Health Operations dated in January 2018. The memorandum states that in querying the Master Radiation Exposure Registry (MRER), it "found no external or internal radiation exposure data for this veteran." The memo states that MRER is central repository for occupational radiation exposure and the records date back to 1947, but there are individual cases where information may not have been forwarded from units to the MRER. "The potential for exposure to ionizing radiation when working near some radar systems does exist, but we are unable to determine what specific exposures may have resulted for this veteran." According to the memorandum, an Air Force study of over 46,000 dosimetric readings for 4,138 personnel, showed only 4 individuals with lifetime doses over .300 rem, whereas the average annual exposure to background radiation for people in the United States is approximately .620 rem. The memorandum reiterates that various bodies have determined that no long-term effects including cancer developed from low-level exposure to radiofrequency radiation, and a study of U.S. Navy personnel similarly found no adverse effects attributed to radiofrequency radiation exposure. Findings were attached to the memorandum. At the January 2018 VA examination, the examiner opined that the Veteran's diagnosed prostate cancer was unlikely related to military service based on the non-ionizing radiation to which he claimed to have been exposed. The examiner outlined the differences between ionizing and non-ionizing radiation in the opinion. Based on epidemiological study referenced by the examiner in his opinion, he stated that NIH was a reliable, authoritative institution and relied on its research showing generally that there is a lack of "consistent or convincing evidence of a causal relation between RF exposure and any adverse health effect." With regard to the Veteran's contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, they fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED