Citation Nr: 21041750 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-34 593 DATE: July 10, 2021 ORDER Entitlement to service connection for a heart disorder, to include as a result of exposure to ionizing radiation, is denied. REMANDED Entitlement to service connection for colorectal cancer with colon resection, to include as a result of exposure to ionizing radiation, is remanded. Entitlement to service connection for metastatic liver cancer, to include as a result of exposure to ionizing radiation, is remanded. Entitlement to service connection for lung cancer, to include as a result of exposure to ionizing radiation, is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to lung cancer, is remanded. Entitlement to service connection for constrictive bronchiolitis, to include as secondary to lung cancer, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a heart disorder, due to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a heart disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to November 1979 and January 1980 to January 1986. The Veteran's character of service for the period from January 22, 1984 to January 17, 1986 is considered a bar to all benefits administered by the Department of Veterans Affairs (VA). The Veteran died in January 2018. The appellant, who is the Veteran's surviving spouse, has been properly substituted for the Veteran. 38 U.S.C. § 5121A. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of a VA Regional Office. In April 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. This case was before the Board in March 2018. The Veteran's claims were dismissed after his death. The case is now again before the Board for further appellate action. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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); 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a heart disorder, to include as a result of exposure to ionizing radiation, is denied. The Veteran contends that he has a heart disorder related to in-service exposure to radiation through his duties working with military radar systems. The Board notes that the Veteran was not afforded a VA examination for his service connection claim for a heart disorder. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumptive period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159 (c)(4). The third factor, in particular, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, the Board finds that neither the Veteran nor appellant has submitted sufficient evidence to indicate that the Veteran had a heart disorder related to an event, injury, or disease that occurred in service. Accordingly, the Board finds that no further development of the Veteran's claims for service connection for a heart disorder are required. The Veteran's DD Form 214 indicates that he served as a Hawk missile system fire control crew member. In October 2015, the Veteran completed a radiation risk activity information sheet. He reported that he was exposed to ionizing radiation through his duties working on air defense radars in service from 1980 to 1986. In December 2015, the U.S. Army Dosimetry Center reported that it was unable to locate any records of exposure to ionizing radiation for the Veteran. The United States Court of Appeals for Veterans Claims (Court) has taken judicial notice that radar equipment emits microwave-type, non-ionizing radiation. Rucker v. Brown, 10 Vet. App. 67, 69 (1997). As such, the duties described by the Veteran in proximity to military radar equipment may have resulted in exposure to non-ionizing radiation. However, non-ionizing exposure from radio or radar equipment is not the type of radiation exposure addressed by the VA regulations under 38 C.F.R. §§ 3.309, 3.311, which address exposure to ionizing radiation. As such, presumptive service connection based on ionizing radiation under 38 C.F.R. §§ 3.309 and 3.311 does not apply to the Veteran's claims. A review of the Veteran's service treatment records does not reflect any complaints, findings, or treatment for any conditions related to a heart disorder. The Veteran has been diagnosed with a heart disorder, as a November 2013 VA primary care note reflects a diagnosis of coronary artery disease. In August 2017, the Veteran submitted an article reporting that a large number of German Armed Forces personnel working with military radar systems developed cancer. In December 2017, the Veteran submitted a study that suggests that Belgian military personnel who served between 1963 and 1994 in units equipped with anti-aircraft radars had a higher risk of dying from cancer. Prior to his death, the Veteran asserted that his heart disorder is related to his in-service exposure to radiation. However, the record does not indicate that the Veteran's heart disorder, which was not related to cancer, had a causal connection or association with his active military service. A lay person is competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the record dates the onset of symptoms of a heart disorder to many years after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran was not competent to address the etiology of his disability. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for a heart disorder. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran's claim for a heart disorder must be denied. REASONS FOR REMAND 1. Entitlement to service connection for colorectal cancer with colon resection, to include as a result of exposure to ionizing radiation, is remanded. 2. Entitlement to service connection for metastatic liver cancer, to include as a result of exposure to ionizing radiation, is remanded. 3. Entitlement to service connection for lung cancer, to include as a result of exposure to ionizing radiation, is remanded. 4. Entitlement to service connection for COPD, to include as secondary to lung cancer, is remanded. 5. Entitlement to service connection for constrictive bronchiolitis, to include as secondary to lung cancer, is remanded. The Board finds that a remand is necessary before a decision on the merits of the claims can be reached. The Veteran's DD Form 214 indicates that he served as a Hawk missile system fire control crew member. In October 2015, the Veteran completed a radiation risk activity information sheet. He reported that he was exposed to ionizing radiation through his duties working on air defense radars in service from 1980 to 1986. In December 2015, the U.S. Army Dosimetry Center reported that it was unable to locate any records of exposure to ionizing radiation for the Veteran. The United States Court of Appeals for Veterans Claims (Court) has taken judicial notice that radar equipment emits microwave-type, non-ionizing radiation. Rucker v. Brown, 10 Vet. App. 67, 69 (1997). As such, the duties described by the Veteran in proximity to military radar equipment may have resulted in exposure to non-ionizing radiation. However, non-ionizing exposure from radio or radar equipment is not the type of radiation exposure addressed by the VA regulations under 38 C.F.R. §§ 3.309, 3.311, which address exposure to ionizing radiation. As such, presumptive service connection based on ionizing radiation under 38 C.F.R. §§ 3.309 and 3.311 does not apply to the Veteran's claims. In August 2017, the Veteran submitted an article reporting that a large number of German Armed Forces personnel working with military radar systems developed cancer. In December 2017, the Veteran submitted a study that suggests that Belgian military personnel who served between 1963 and 1994 in units equipped with anti-aircraft radars had a higher risk of dying from cancer. On consideration of the evidence of record, the Board finds that a remand is necessary to obtain a VA opinion on the issue of whether the Veteran's disabilities are directly related to non-ionizing radiation exposure. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination(s) by an appropriate clinician(s) to determine the nature and etiology of the Veteran's colorectal cancer, metastatic liver cancer, lung cancer, COPD, and constrictive bronchiolitis. The examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's disabilities (colorectal cancer, metastatic liver cancer, lung cancer, COPD, constrictive bronchiolitis) are related to or had an onset during the Veteran's period of active service, including exposure to non-ionizing radiation. 2. The examiner is asked to address the lay statements from the Veteran and the articles submitted by the Veteran. A complete rationale for all opinions is required. 3. If any determination remains unfavorable to the Veteran, send the appellant and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, 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.