Citation Nr: 21039769 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 13-13 728 DATE: July 1, 2021 ORDER Entitlement to service connection for residuals of colon cancer, to include as due to ionizing radiation exposure is denied. FINDINGS OF FACT 1. The Veteran participated in a radiation risk activity, as defined by VA regulations, during service and is a radiation-exposed Veteran. 2. The Veteran's colon cancer did not have its onset in service or manifest to a compensable degree within one year of service discharge, and it is not related to any incident of service, including exposure to ionizing radiation. CONCLUSION OF LAW The criteria for service connection for colon 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 FINDINGS AND CONCLUSION The Veteran served on active duty from May 1968 to February 1972. This matter was before the Board in November 2017 and June 2020, when it was remanded for further development. Service Connection The Veteran is seeking service connection for colon cancer, claimed as secondary to ionizing radiation. 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 manifest 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. 38 U.S.C. § 1112 (c), 38 C.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). The term "radiogenic disease" means a disease that may be induced by ionizing radiation and includes colon cancer. 38 C.F.R. § 3.311(b)(2). Diseases presumptively service connected for radiation-exposed Veterans under the provisions of 38 C.F.R. § 3.309(d)(2) include colon cancer. 38 C.F.R. § 3.309(d)(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 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, 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). The Veteran contends that he was exposed to ionizing radiation through his military occupational specialty (MOS) as an interior communications electrician aboard nuclear submarines and that he developed colon cancer in 1980 due to the exposure. He has stated that he served aboard the USS Holland, that his duties included performing tests and maintenance, and that on two occasions he "went into the actual reactor compartment to perform duties" for 12 hours at a time for three days. He asserts that during that time he wore a film badge dosimeter, which was read every hour. See VA Form 21-4138, Statement in Support of Claim, received in August 2017. The Veteran has also submitted a statement from R. Rupp, who served with the Veteran on the USS Holland and confirms the Veteran's assertion that any sailor entering a submarine to perform work had to wear a film badge dosimeter, which was returned and tracked at the end of the visit. Service treatment records (STRs) and service personnel records confirm that the Veteran served aboard the USS Holland which was a submarine tender. They also show that he served aboard the USS Alamogordo, but do not indicate service aboard any specific nuclear submarines. The STRs include a DD Form 1141 for the Veteran's service on the USS Holland which shows a skin dose of 0 rem, a gamma and x-ray dose of 0 rem, and a neutron dose of 0 rem. Post service records show the Veteran underwent a sigmoid colon resection in 1980 for colon cancer. Colon cancer is among those forms of cancer which may be presumptively service-connected under the provisions of 38 C.F.R. § 3.309 (d)(2). It is also a radiogenic disease under the provisions of 38 C.F.R. § 3.311(b)(2)(x), 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. In June 2012, the Agency of Original Jurisdiction (AOJ) requested that the Naval Dosimetry Center furnish a DD Form 1141 or an equivalent record of occupational radiation exposure, to include for the Veteran's service aboard the USS Alamogordo. In July 2012, the Naval Dosimetry Center informed VA that their records showed the Veteran received a skin equivalent to the whole body dose of 0 rem, a deep dose equivalent photon dose of 0 rem, a deep dose equivalent neutron dose of 0 rem, and a committed effective dose equivalent dose of 0 rem, during his period of exposure from November 1970 to March 1971. In accordance with prior remand directives, the AOJ submitted a referral to the VA Under Secretary for Health for a radiation dose estimate and opinion in accordance with 38 C.F.R. § 3.311(c). In a February 2018 letter, the Director of VA Compensation Services (Director) found that because the Veteran's occupational exposure to ionizing radiation was below 5-10 rem, risks of health effects are either too small to be observed or are nonexistent; therefore, an advisory medical opinion was deemed unnecessary. Based upon the medical evidence of record and the administrative opinions of record, entitlement to service connection for the Veteran's colon cancer due to in-service radiation exposure is not warranted under 38 C.F.R. § 3.311. The Director's opinion is entitled to significant probative weight. The opinion considered the pertinent evidence of record including a calculation based on a dose level below 5-10 rem, which was indicative of health risks either too small to be observed or nonexistent. Therefore, even after affording all benefit of doubt in estimating the Veteran's level of in-service exposure, the Board finds the opinion offers probative evidence against the appeal. The Board is also unable to attribute the Veteran's colon cancer to his in-service radiation exposure on a direct basis. STRs fail to reveal any signs or symptoms suggestive of colon cancer. There is also no objective evidence that the Veteran was diagnosed with colon cancer within one year of service discharge. As noted above, the Veteran's colon cancer was initially diagnosed in 1980, almost 10 years after the Veteran separated from service. Post-service records also reflect that when the cancer was found, the Veteran had a smoking history of eight packs of cigarettes per day until 1975. The Veteran also reported that he continued to chew tobacco after having quit smoking. In a January 2021 VA medical opinion, the examiner concluded the Veteran's colon cancer was less likely than not (less than 50 percent probability) related to service. The examiner noted that STRs were silent for elevated levels of ionizing radiation, and that one would have to resort to mere speculation that his development of colon cancer was caused from his reported exposure. Citing to current medical references, the examiner indicated that age, family history, inflammatory bowel disease, obesity, diabetes, excess alcohol consumption, excess processed meat compression, lack of physical activity, and tobacco use have been consistently identified as risk factors for colorectal cancer. She noted that the only strong risk factor that Veteran had for the development of colon cancer was his multi-year smoking habit. Based on the foregoing, there is no probative and competent medical evidence of record linking the onset of colon cancer to the Veteran's military service. The January 2021 opinion is the most probative and persuasive medical evidence in this case, as it based upon a review of the claims file and is supported by sufficiently clear and well-reasoned medical rationale. The VA examiner considered the onset and course of the pertinent symptoms, the Veteran's smoking history, and performed a review of medical literature related to the likelihood or not that the Veteran's colon cancer developed as a result of ionizing radiation during service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The claims file contains no competent medical evidence refuting it. To the extent the Veteran argues that a relationship exists between his colon cancer and service, such an assertion treads into the realm of medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). In any event, the probative value of his belief is outweighed by that of the medical examiner, who clearly does have the education, training, and experience to address etiology. Because the Veteran's colon cancer was not present in service, did not 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). Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bryant, Jeana R 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.