Citation Nr: 22013997 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-38 898 DATE: March 11, 2022 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT The Veteran did not participate in radiation-risk activity and scientific analysis of the Veteran's radiation dose estimate of .004 rem during service is below the level associated with any health effects including esophageal cancer. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. U.S.C. §§ 1101, 1112, 1131, 1137, 1153, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.306, 3.307, 3.309, 3.311, 3.312 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1955 to June 1975. He died in January 2010. The appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) In February 2020, the appellant cancelled her request for a hearing. Accordingly, her request for a hearing is considered withdrawn. This claim was before the Board in March 2020 and remanded for further evidentiary development. The Board observes that the development outlined in the remand directives has been accomplished. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for the cause of the Veteran's death In March 2016, the appellant submitted her Application for DIC, Death Pension and/or Accrued Benefits. The appellant contends that the Veteran's esophageal cancer was caused by exposure to radiation in service. After review of the pertinent evidence, the Board finds that service connection is not warranted. The Veteran's death certificate indicates that the Veteran passed away in January 2010 due to metastatic esophageal cancer that was diagnosed approximately six months prior to his death. A general overview article on Johnston Atoll in Hawaii was submitted with the appellant's Application. She reported that the Veteran was stationed at Johnston Atoll from December 1964 to December 1965. The appellant and the Veteran were married in December 1994. She maintains that although the Veteran was not present on the island during the nuclear testing, the radiation from the testing was still present and the Veteran's exposure to the residual radiation caused his death from esophageal cancer 45 years later. Service treatment records reflect a separation Report of Medical History in which the Veteran noted that his military occupational specialty was a personal security policeman. He denied all conditions. His clinical examination in March 1975 was normal in all respects. During service, treatment records reflect that the Veteran was seen for cellulitis of the ankle, and infectious adenitis with a normal chest x-ray in April 1964. Military personnel records confirm that the Veteran had an isolated tour to the Johnston Islands from December 1964 to December 1965. The Veteran was evaluated and cleared for a duty assignment involving nuclear weapons. In February 2017, VA received a March 2002 Honolulu Advertiser newspaper article from the appellant and a Statement in Support of Claim. The article notes that two aborted nuclear test missile launches at Johnston Atoll in 1962 resulted in radioactive contamination from a breakdown product of plutonium. The article states that cleanup of the radioactive contamination had been going on for 40 years. The radiation risk for people on the island for one year at this level was noted to be slightly less than the radiation dose an airline passenger receives flying coast to coast. In May 2017, the Department of the Air Force provided a Response to Radiation exposure/Dose Inquiry for the Veteran. The occupational radiation exposure monitoring records in the USAF Master Radiation Exposure Registry (MRER) were reviewed. It was noted that the MRER is the single repository for occupational radiation exposure monitoring for all air force personnel dating back to 1947. No external or internal radiation exposure data was found for the Veteran. The response further stated that due to the low exposure potential for security force personnel, dosimetry monitoring would neither have been accomplished nor required. Service connection for a condition claimed to be caused by exposure to ionizing radiation during service may be established in one of three ways. Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, service connection may be established on a presumptive basis for certain diseases manifesting in a radiation-exposed veteran, unless the presumption is rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1112(c); 38 C.F.R. §§ 3.307(d), 3.309(d)(2)(i), (d)(3)(i). Second, if a veteran develops a "radiogenic disease," which is defined as a disease that may be induced by ionizing radiation, and it is claimed that the disease was caused by exposure to ionizing radiation in service, specific development procedures will be followed by VA to determine whether service connection may be established. 38 C.F.R. § 3.311. Finally, service connection may be established by the "difficult burden" of producing competent and probative evidence that the claimed condition was actually caused by exposure to ionizing radiation during active service. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran's esophageal cancer is listed among the diseases for which presumptive service connection based on radiation exposure may be established if the Veteran is radiation-exposed by virtue of participation in a radiation-risk activity. See 38 C.F.R. § 3.309(d)(2)(i); 3.309(d)(3)(i). The term "radiation-risk activity" means: onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war of Japan during World War II resulting in an opportunity for exposure to radiation comparable to those occupying Hiroshima or Nagasaki; certain service on the grounds of a gaseous diffusion plant in Paducah, Kentucky, Portsmouth, Ohio, or at area K25 at Oak Ridge, Tennessee; or certain service on Amchitka Island, Alaska. See 38 C.F.R. § 3.309(d)(3)(ii). Accordingly, the evidence does not establish that the Veteran is a "radiation-exposed veteran" under this provision. If a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3), the Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the Veteran suffers from a radiogenic disease identified in the list contained in the regulation and claims exposure to ionizing radiation in service. 38 C.F.R. § 3.311(b)(2). The Veteran's esophageal cancer is included in the list of diseases identified as radiogenic. Under the special development procedures in § 3.311(a) for a radiogenic disease, a request must be made for any available records concerning the Veteran's exposure to radiation. These records normally include but are not limited to the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical 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). In addition, under 38 C.F.R. § 3.311, the Under Secretary of Benefits must consider a service connection claim based on in-service ionizing radiation with reference to the following factors specified in subsection (e): (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 the 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 March 2021, the Executive Director of the Compensation Service (Director) provided an Advisory Opinion for Radiation Review under 38 C.F.R. § 3.311. She noted that the Veteran's service records do not contain a completed DD Form 1141, Record of Occupational Exposure to Ionizing Radiation, or its equivalent. It is noted that the Air Force Medical Readiness Agency found no external or internal occupational radiation exposure data for the Veteran. The Director further inquired with the Air Force Safety Center (AFSC) who determined the Veteran had the potential to be exposed to ionizing radiation from his duties as an air policeman and provided an estimated maximum total effective dose equivalent (TEDE), or sum of external and internal dose, to the esophagus of approximately 0.0004 rem. After reviewing the file (to include documents describing the radiation environment at Johnston Atoll), the designee for the Under Secretary for Health acknowledged the radiation dose as 0.0004 rem as reconstructed by the AFSC. A radiation review was conducted by a health physicist with the Environmental Health Program. The health physicist noted in his advisory opinion that the Veteran was 23 years old at the time of the alleged exposure, that the Veteran was diagnosed with esophageal cancer 45 years after the alleged exposure, that the Veteran was a Caucasian male, that no pertinent family medical history, employment history or consideration of post service exposure to radiation had been provided. See Ellis v. McDonough, No. 20-7680 February 28, 2022. The AFSC determined that the Veteran had potential to be exposed to ionizing radiation from his duties as an air policeman and provided an estimated maximum total effective dose equivalent to the esophagus of .0004 rem including all exposures from 1958. The Director noted that esophageal cancer is a disease listed under 38 C.F.R. § 3.309(d); however, the Veteran's service did not include participation in a radiation-risk activity as defined by the regulation. Based upon a position statement from the Health Physics Society, a person typically accumulates an effective dose of 25 rem from natural background radiation during an average 80-year lifespan. Absent a high dose exposure above 10 rems in addition to lifetime background exposure, the radiation effect is not statistically different than zero. The Director concluded, based on the scientific evidence referenced in the memorandum from the Under Secretary for Health and review of the evidence in its entirety, that there was no reasonable possibility that the Veteran's esophageal cancer can be attributed to ionizing radiation exposure during military service. With regards to the appellant's lay assertions, the Board acknowledges her belief that service connection for the Veteran's esophageal cancer is warranted based on exposure to ionizing radiation. However, the lay assertions regarding radiation exposure are outweighed by the probative evidence found in the March 2021 Director of Compensation Service report, specifically the reconstruction of the radiation dose by the AFSC, as well as position statement from the Health Physics Society and analysis by a health physicist. The Board notes that the article submitted by the appellant from the Honolulu Advertiser does not support that the Veteran was radiation exposed. The appellant's concern as to causation of the Veteran's esophageal cancer based upon exposure to ionizing radiation is not sufficient to outweigh the official dose estimates, which are based on scientific evidence. After a full review of the record, the weight of the probative evidence demonstrates that service connection for esophageal cancer due to ionizing radiation must be denied for the reasons discussed above. As the weight of the most probative evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.