Citation Nr: 21040499 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 14-11 821 DATE: July 5, 2021 ORDER Service connection for rectal cancer, as secondary to exposure to ionizing radiation, is denied. Service connection for the Veteran's cause of death is denied. FINDINGS OF FACT 1. The Veteran's calculated radiation exposure during his active duty service was 0 rem, and did not exceed 10 rem above the natural background. 2. The weight of the evidence is against finding that the Veteran's rectal cancer was due to ionizing radiation or otherwise due to the Veteran's active duty service. 3. The Veteran died in April 2013; the cause of death was atrial fibrillation, acute blood loss, rectourethral fistula, and colorectal cancer. 4. At the time of his death, the Veteran was service-connected for bilateral hearing loss, tinnitus, a fracture of the right fifth toe, and hand eczema. 5. At the time of his death, the Veteran was not service-connected for a heart condition, a rectourethral fistula, or colorectal cancer. 6. The cause of the Veteran's death is not related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for rectal cancer have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1973 to March 1994. Unfortunately, the Veteran died in April 2013. The appellant is the Veteran's surviving spouse. This appeal was previously before the Board in March 2016 and most recently in July 2019. The March 2016 Board decision remanded the appeal to obtain a radiation dose estimate from the Under Secretary for Health and to obtain an etiological opinion as to the Veteran's rectal cancer, specific to the radiation estimate obtained. The March 2016 Board decision noted an August 2014 memorandum from the Director, Post-9/11 Era Environmental Health Program, who only noted exposure of 0.417 rem. A subsequent letter from a VA medical professional noted that the Veteran's total in-service radiation dose was 0.417 and since his radiation dose did not exceed 5 rem in one year, or 10 rem in a lifetime, it was unlikely that the Veteran's rectal cancer could be attributed to radiation exposure while in the military. The March 2016 Board remand specifically noted that the Veteran's Form 1527s demonstrated radiation exposure of 0.417 rem, from August 1, 1978 to September 30, 1978 and an additional 0.417 rem dose of radiation exposure from September 1, 1981 to November 13, 1981. It was noted that the total exposure, pursuant to the Veteran's Form 1527s alone, to be .0834. It was also noted that as part of the Veteran's enlisted duties, he supervised and engaged in identification, rendering safe, and recovery and/or disposal of explosive, incendiary, chemical, nuclear, and explosive devices. As such, on remand, the Board instructed the Under Secretary for Health to consider all of the evidence of record, noting that the Veteran's Form 1527s alone may not accurately describe his exposure to ionizing radiation during the course of his service. In August 2018, in response to the Board's March 2016 remand, the Under Secretary for Health provided a memorandum and estimated that the Veteran's exposure to radiation during service, equated to 0.417 rems. The Under Secretary for Health based this assessment upon the Form 1527s contained in the Veteran's military personnel file. A subsequent letter from the Director of Compensation Service, stated that based on the evidence of record, there was no reasonable possibility that the Veteran's rectal cancer was the result of exposure to ionizing radiation during service. The July 2019 Board decision found that the August 2018 memorandum did not substantially comply with the directives of the March 2016 Board remand. The July 2019 Board decision noted that the March 2016 Board remand specified that, per the Veteran's Form 1527s alone, the Veteran's exposure to radiation was revealed to be 0.834 rems; and the radiation estimate did not address all of the evidence of record, to include the Veteran's specific job duties, while in service. The July 2019 Board decision remanded the case so that the Under Secretary for Health could prepare a radiation dose estimate that took into account all of the relevant evidence of record, to include the Veteran's Form 1527s, which indicated radiation exposure to 0.834 rems and to take into account his work as an explosive ordinance disposal craftsman and as a technical training instructor. After that development took place, referral to the Under Secretary for Benefits for an etiology opinion regarding whether the Veteran's rectal cancer was related to his active duty service, to include in-service exposure to ionizing radiation. Service Connection Service connection requires competent evidence showing: (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). For claims based on alleged exposure to ionizing radiation, service connection can be awarded on a presumptive basis for diseases specific to radiation exposed veterans, i.e., one that engaged in a radiation risk activity, under 38 U.S.C. § 1112 (b)(2) and 38 C.F.R. § 3.309 (d). However, rectal cancer is not considered to be radiogenic diseases under these provisions. 1. Service connection for rectal cancer, as secondary to exposure to ionizing radiation, is denied. The appellant asserts that the Veteran's rectal cancer was the result of exposure to ionizing radiation. See Notice of Disagreement (NOD) dated March 20, 2014. The medical records show that the Veteran's rectal cancer was first diagnosed many years after his active duty service. There has been no assertion that the onset of the Veteran's rectal cancer was during his active duty service, or within a year of separation. The Board acknowledges that the Veteran's service personnel records contain multiple Form 1527s, which show that the Veteran was exposed to ionizing radiation. A review of the record reveals that the Veteran's Form 1527s, covers the dates from February 1, 1975 to December 31, 1983. A 0.417 rem dose from August 1, 1978 to September 30, 1978 and a 0.417 rem dose from September 1, 1981 to November 13, 1981, which showed a total rem dose of 0.834. In December 2020, in response to the Board's July 2019 Board remand, the Director, Post-9/11 Era Environmental Health Program, provided a memorandum regarding the Veteran's reported exposure to ionizing radiation. The Director acknowledged that the Veteran's service personnel records showed that he served as an explosive ordinance disposal (EOD) craftsman for 13 years and 7 months and as a technical training instructor for EOD craftsman for 5 years and 10 months. The Director also acknowledged that the Veteran's Form 1527s showed a total recorded dose of 0.834 rem. However, the Director also noted that the Air Force Medical Support Agency (AFMSA) reported that the US Air Force School of Aerospace Medicine historically assigned an administrative dose of 0.417 rem for lost/damaged badges. The Director explained that the intent was for the base to go back and assign the actual dose; and in some cases, this administrative change did not occur and a dose of 0.417 rem was kept in the Veteran's dosimetry record. Two of these entries are shown on the Veteran's Forms and in these cases, the AFMSA averages the other values on the Form 1527s and calculates an average of the Veteran's career dose. When the AFMSA did that for this Veteran, the cumulative dose was 0 rem. The Director stated that they agreed with the AFMSA assessment of the Veteran's monitored radiation dose. The Director further explained that the administrative dose assigned were only to cover potential dose not recorded due to lost or damaged dosimeters and that they are not the true dose. Since the Veteran was monitored for nearly 10 years and there is no recorded dose other than the administrative doses, the dose for the period of February 1, 1975 to December 31, 1984 is 0 rem; and for the remainder of service, the Veteran was not monitored for radiation exposure by the Air Force because his job as a training instructor, team chief, and EOD flight superintendent duties did not require it. The Director noted that the Air Force would not arbitrarily stop monitoring during the time period when he was a technical training instructor for EOD craftsman. The Director also noted that the Health Physics Society1, which was revised in February 2019 stated, the annual average effective dose from natural background radiation in the US is about .3 rem. A person might accumulate an effective dose from natural background radiation of about 5 rem in the first 17 years of life and about 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 10 rem above natural background from all sources combined, the observed radiation effects in people are not statistically different from zero. After a review of the Veteran's employment history, 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, the Director concluded that the total dose for the entire period of active duty service, was assigned 0 rem. Since the Veteran's assigned total radiation dose (0 rem) did not exceed 10 rem above natural background, it was unlikely that rectal cancer was caused by exposure to ionizing radiation during military service. Here, the Director provided a dose estimate based on all relevant evidence of record, to include the Veteran's Form 1527s, which noted 0.834 rem dose of radiation exposure; and his work as an EOD craftsman and as a technical training instructor for EOD craftsman. As such, the Board finds that the July 2019 Board remand directives have been substantially complied with. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the December 2020 memorandum was prepared by a Health Physicist and reviewed by the Director. The Director acknowledged that the Veteran's Form 1527s revealed that the Veteran was exposed to 0.834 rem dose of ionizing radiation during his active duty service, but explained that the estimate was based on the assignment of administrative doses when there was a lost or damaged dosimeter. Further, the Director explained that the Veteran was monitored for nearly 10 years, when he worked as an EOD craftsman, and there was no recorded dose other than the 2 administrative doses. The Director opined that the Veteran's actual dose of ionizing radiation during his active duty service was 0 rem, based on all the evidence of record. The Director concluded that it was unlikely that the Veteran's exposure to 0 rem during his active duty service was the cause of his rectal cancer. Here, there is only one competent medical opinion of record. The appellant has not provided a positive nexus opinion from any competent medical sources. The only suggestion that the Veteran's rectal cancer was due to in-service ionizing radiation, are assertions made by the appellant. The opinion of the Director, Post-9/11 Era Environmental Health Program, is afforded great probative weight. The Director reviewed the Veteran's claims file, to include the information identified by the July 2019 Board remand, and provided a well-reasoned rationale that explained why the Veteran's actual exposure to ionizing radiation was 0 rem, when his personnel records showed an exposure of 0.834 rem dose of radiation. The Director also took into account the Veteran's in-service jobs and explained how the dose estimate was made. The Director also described the general baseline of natural background radiation individuals who reside in the United States are exposed to; and that levels below 10 rem above the natural background are not statistically different from zero. To the extent that the appellant believes that the Veteran's rectal cancer was the result of his in-service exposure to ionizing radiation, such a medical opinion requires medical expertise, and that determination cannot simply be made by lay observation alone; and the appellant is not considered competent (meaning medically qualified by training or experience) to provide a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given that the Veteran's personnel records showed a radiation dose estimate of 0.834, a VA medical opinion was sought to determine his radiation dose, which took into account his service personnel records and his in-service jobs. Unfortunately, in December 2020, the VA Director, Post-9/11 Era Environmental Health Program, provided a negative nexus opinion, with a well-reasoned and robust rationale. The Board notes that the appellant has not provided a competent medical opinion that would otherwise undermine the Director's medical opinion. The Board acknowledges the appellant's representative's May 2021 Appellate Brief. The representative referred to the August 2018 medical opinion that incorrectly reported that the Veteran's exposure to ionizing radiation did not exceed 0.417 rem, the reason the July 2019 Board decision remanded the case. However, the representative did not acknowledge the December 2020 memorandum, which explained why the Veteran did not have any in-service exposure to ionizing radiation. The Board is sympathetic to the appellant's claim and does not wish to minimize her assertions. The Board would like to acknowledge the Veteran's Form 1527s which do show that he was exposed to 0.843 rem of ionizing radiation. However, the Director, Post-9/11 Era Environmental Health Program explained that the reported exposure of 0.843 rem was only an administrative estimate, when dosimeters were lost or broken. The Board also points out that even if it were to accept that the Veteran was exposed to 0.834 rem during his active duty service, the Director's opinion appears to nonetheless preclude the grant of service connection. The Director explained that if a person's total radiation dose does not exceed 10 rem, it would not likely be the cause for rectal cancer. The Director also noted that the Veteran was monitored for 10 years and that all other dosimeter readings showed exposure to 0 rem. Here, the medical evidence weighs against her claim. As such, the criteria for service connection have not been met; the Board cannot resolve reasonable doubt in her favor because the weight of the evidence is not in relative equipoise. Accordingly, service connection for rectal cancer is denied. 2. Cause of Death The appellant asserts that the Veteran's rectal cancer was the result of his exposure to ionizing radiation during his active duty service. The cause of death, as listed on his Death Certificate, was atrial fibrillation, acute blood loss, rectourethral fistula, and colorectal cancer. She asserts that the Veteran was exposed to ionizing radiation as an EOD craftsman and as a technical training instructor for EOD craftsman. To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310. A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a refutable presumption of service incurrence, such as refractory non-Hodgkin's lymphoma, if manifested to the required degree within a prescribed period from the Veteran's separation from active duty; or one that is proximately due to or the result of, or aggravated by, a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309, 3.310 (a). A service-connected disability will be considered as the primary cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related to the cause of death. A contributory cause of death is inherently one not related to the primary cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 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. 38 C.F.R. § 3.312. Here, it is undisputed that the Veteran's death was caused by colorectal cancer. His private treatment records show that he was admitted to the hospital on April 12, 2013, with a history of rectal cancer and severe lower GI and lower GU bleeding. He underwent a flexible sigmoidoscopy, a cystoscopy, and also irrigation of the bladder; however, he continued to have episodes of intermittent, profound bleeding. He underwent the removal of nephroureterectomy tubes, but continued to have numerous blood transfusions. Unfortunately, on the night of his death, he again had a significant bleed, which led to his death. The Veteran's death certificate lists the cause of his death as atrial fibrillation, acute blood loss, rectourethral fistula, and colorectal cancer. He was not service-connected for a heart condition, a rectourethral fistula, or colorectal cancer. The Board has considered whether the Veteran was entitled to service connection for rectal cancer, but as discussed, service connection for rectal cancer was denied. Further, the weight of the evidence is against finding that the Veteran's rectal cancer began during service, or within a year of his separation. Consequently, it is not shown that the rectal cancer and the resulting GI and GU bleeds that caused the Veteran's death was causally linked to his active service. The Board notes that at the time of his death, the Veteran was service-connected for bilateral hearing loss, tinnitus, a fracture of the right fifth toe, and hand eczema. However, there is no assertion that those disabilities caused the Veteran's rectal cancer or was otherwise the cause of his death. Consideration has been given to the assertions of the appellant, that the Veteran's rectal cancer was due to his active service. However, as discussed in this decision, service connection for rectal cancer is not warranted. The Board would like to express that it is extremely sympathetic toward the appellant's claim and is deeply appreciative of the Veteran's military service. Unfortunately, service-connection for rectal cancer was not warranted, which means that the service connection claim for the cause of the Veteran's death is also not warranted, because it is based on the premise that his rectal cancer was the cause of his death. Accordingly, the claim for service connection for the cause of the Veteran's death is denied. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.