Citation Nr: 22017497 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 15-07 507 DATE: March 25, 2022 ORDER Service connection for non-Hodgkin's lymphoma, to include as due to ionizing radiation exposure, is denied. FINDING OF FACT The competent and probative evidence does not tend to show that the Veteran's current non-Hodgkin's lymphoma is not attributable to service, including exposure to ionizing radiation. CONCLUSION OF LAW The criteria for service connection for non-Hodgkin's lymphoma are not met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to October 1981. This matter comes to the Board of Veterans' Appeals from an October 2012 rating decision. In June 2018, the Board granted service connection for Hodgkin's lymphoma (in remission) due to ionizing radiation exposure. The Board additionally remanded the issue on appeal, entitlement to service connection for non-Hodgkin's lymphoma due to ionizing radiation exposure for development accorded under 38 C.F.R. § 3.311. The matter is now returned to the Board for adjudication. In November 2021, the Veteran provided testimony before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Entitlement to service connection for non-Hodgkin's lymphoma, to include as due to ionizing radiation exposure The Veteran maintains that his non-Hodgkin's lymphoma was caused by ionizing radiation exposure while in service. Specifically, the Veteran contends that he was exposed to ionizing radiation while participating in the cleanup of nuclear testing sites at Enewetak Atoll, part of the Marshall Islands. Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Hilkert v. West, 12 Vet. App. 145 (1999); aff'd, 232 F.3d 908 (Fed. Cir. 2000). First, there are diseases that are presumptively service connected in "radiation-exposed veterans" under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during service or was aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). As directed by Combee, VA must not only determine whether a veteran has a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability is otherwise the result of in-service exposure. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation of a current disease by in-service exposure. Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d)(2) do not include the prostate cancer. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection generally 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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. *** Although the Veteran reports wearing radiation collection badges during his service at Enewetak and other locations, an October 2012 letter from the Army Dosimetry Center indicates that no records could be located for the Veteran. However, the Veteran's military personnel records reflect that he participated in the Enewetak Cleanup Operation from July 1979 to October 1979. Therefore, the Board finds that an in-service radiation exposure event occurred consistent with the June 2018 Board decision's finding made regarding the issue of service connection for Hodgkin's lymphoma. A review of the Veteran service treatment records shows no reports or diagnosis of non-Hodgkin's lymphoma. In October 2012 and November 2020, the Army Dosimetry Center reported they were unable to locate any records of exposure to ionizing radiation for the Veteran. The Veteran's service records failed to include DD Form 1141, Record of Occupational Exposure to Ionizing Radiation, or its equivalent. The Board notes that the Veteran reported wearing a dosimetry card every day, and turning in the card in at night while conducted clean up activity in Enewetak Atoll. Medically, in November 2012 letter from the Veteran's treating physician, Dr. A.W. indicated that the Veteran's combination of Hodgkin's and non-Hodgkin's lymphoma was very unusual and environmental factors, including exposure to nuclear waste, must be considered as potential causes for that presentation. In a January 2014 letter from another treating physician, Dr. J.T. noted that the Veteran had been diagnosed with both Hodgkin's and non-Hodgkin's lymphoma and had served in an area where there was clean-up of nuclear waste. The physician opined that the Veteran's cancers were as likely, or more than likely to as not, to have been caused by his radiation exposure during military service. A June 2014 VA examination report reflects that the examiner noted that the Veteran received a commendation letter confirming his participation in the cleanup at Enewetak and that the Veteran's tasks as a mechanic during the cleanup placed him in direct contact with the radiation-contaminated soil, debris and dust, as well as fuel residuals. The Veteran reported wearing a dosimetry badge which was periodically collected, but that he did not wear protective clothing or masks. The Veteran reported a rash on his back beginning in the late-1970s/early-1980s, which was treated with steroid cream. The Veteran sought treatment from a dermatologist in 2008, and had also began to experience weakness, fatigue, and swollen lymph nodes. The Veteran was subsequently diagnosed with low-grade follicular cutaneous non-Hodgkin's lymphoma, as well as mixed-cellularity Hodgkin's lymphoma, manifested by lymphadenopathy. The examiner reported that nuclear testing at the atoll released 6.3 billion curies of radioactive iodine-131 alone, that certain areas in the atoll were not declared safe for habitation until after the Veteran was in the area, and that the majority of the atoll would not be fit for habitation until approximately 2026. The examiner explained that based on the half-life of radioactive products, it was reasonable to assume and extrapolate that the area was far more hazardous during the period of the Veteran's service and that he was exposed to a higher level of radiation than that which is yet today considered a health hazard. Furthermore, studies suggested an increased likelihood of developing Hodgkin's disease for workers who have been exposed to ionizing radiation. The examiner reviewed the Veteran's military personnel records, non-VA treatment records, and the medical literature, and concluded that based on the Veteran's exposure to radioactive waste and debris, his diagnosis of Hodgkin's lymphoma, and the studies linking Hodgkin's lymphoma to exposure to ionizing radiation, it was at least as likely as not that the Veteran's Hodgkin's lymphoma was caused by exposure to radiation contamination at Enewetak Atoll during his military service. This examiner's opinion and rationale pertained only to Hodgkin's lymphoma (now service-connected), not the non-Hodgkin's lymphoma currently before the Board. Regarding non-Hodgkin's lymphoma, the examiner noted that the Veteran was diagnosed in 2009. The examiner opined that it was at least as likely as not that the Veteran's non-Hodgkin's was related to the in-service radiation exposure from clean up duties conducted a Enewetak Atoll. The examiner's rationale cited to the Veteran's certain exposure to radioactive waste/debris, his diagnosis of non-Hodgkin's lymphoma, and previously-established presumption of service-connection of lymphomas (except Hodgkin's disease) for radiation-exposed veterans. In December 2020, a memorandum opinion from the Under Secretary of Heath was prepared by a Health Physicist and reviewed by the Director of Post-9/11 Era Environmental Health Program. This opinion summarized and reviewed relevant information of the Veteran regarding his duties during service regarding clean up duties and radiation exposure. While the memorandum noted that there was no dosimeter cards found pertaining the Veteran, the reported also considered the findings of the Defense Threat Reduction Agency, Radiation Dose Assessment for Military Personnel of the Enewetak Atoll Cleanup Project from 1977 to 1980 in rendering a radiation dose estimate. The opinion assigned a maximum dose of 0.22 rem for the time spent in the Pacific islands noted in the Veteran's service record. In preparing the opinion, the Veteran's employment history, the 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 relevant to causes of the Veteran's claimed disease were also considered. The opinion also noted that it was unlikely that the Veteran's non-Hodgkin's lymphoma was caused by exposure to ionizing radiation during military service. The memorandum cited to a February 2019 position statement from the Health Physics Society, that found the following: "The average annual effective dose from natural background radiation in the United States is about 3 mSv [0.3 rem]. A person might accumulate an effective dose from natural background radiation of about 50 mSv [5 rem] in the first 17 years of life and about 250 mSv [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 100 mSv [10 rem] above background from all sources combined, the observed radiation effects in people are not statistically different from zero." Memorandum of Radiation Review, Director, Post-9/11 Era Environmental Health Program (12POP5) (Dec. 6, 2020) (citing Health Physics Society, Radiation Risk in Perspective (Feb. 2019)). The Health Physicist and Director (Post-9/11 Environmental Health Program) concluded reasoned that, because the Veteran's estimated lifetime total radiation dose of 0.22 rem did not exceed 100 mSv (10 rem) above natural background levels, the radiation exposure was unlikely to have caused the skin cancer. After this opinion, the Director, Compensation Service, issued a December 2020 memorandum opinion that considered the memorandum from the Director, Post-9/11 Era Environmental Health Program, written for the Under Secretary for Health, and concluded that there was no reasonable possibility that the Veteran's non-Hodgkin's lymphoma was the result of his radiation exposure during service. *** Initially, the Board finds that the Veteran has a current diagnosis of non-Hodgkin's lymphoma as noted in VA and private treatment records. A January 2009 private medical record shows that the Veteran was diagnosed with the condition in December 2008 and 2014 VA examination report also shows this diagnosis. Certain diseases associated with exposure to ionizing radiation will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d)(2). Non-Hodgkins lymphoma is on the presumptive list of diseases associated with radiation exposure. See 38 C.F.R. §§ 3.309(d). However, the Board finds that the Veteran is not entitled to the presumption of service connection under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Although the Veteran claimed his condition was due to exposure to ionizing radiation, and non-Hodgkin's lymphoma is one of the diseases listed under by 38 C.F.R. § 3.309(d)(2), the Veteran is not considered a "radiation-exposed veteran" as defined by 38 C.F.R. § 3.309(d)(3). 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. The term "radiation-risk activity" means 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. 38 C.F.R. § 3.309(d)(3)(i), (ii). The Veteran's service treatment records and military personnel records tend to support a finding that he is not a radiation-exposed veteran because he did not engage in any of the activities listed under 38 C.F.R. § 3.309(d)(3)(ii). Therefore, the Veteran is not entitled to presumption under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). That is not end of the inquiry, as previously noted, the provisions of 38 C.F.R. § 3.311 provide for development of claims based on radiation exposure during active service and post-service development of a radiogenic disease. The provisions do not give rise to a presumption of service connection, but rather establish a procedure for handling claims brought by radiation exposed veterans. See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). 38 C.F.R. § 3.311 essentially states that, in all claims in which it is established that a radiogenic disease first became manifest after service, and it is contended that the disease resulted from radiation exposure, a radiation dose assessment will be made. As previously discussed, the Board has found that the evidence shows that the Veteran was exposed to ionizing radiation during active service on a facts found bases. Because of this, the Veteran's claim was referred to the Under Secretary for Health to obtain a dose assessment pursuant to section 3.311(a). As noted above and specifically the December 2020 Director for VA Compensation Service memorandum shows that the steps of 38 C.F.R. § 3.311 have been conducted. The Board review of Director of the Post-9/11 Era Environmental Health Service appears to have considered the factors listed in 38 C.F.R. § 3.311(e) when formulating the opinion. In this regard, the memorandum/opinion reflects consideration of the Veteran's background and history, to include his birth in North Carolina and time in the military with consideration of his time in the Marshall Islands (such as time in/around the power plant on Lojwa Island) and his Certificates of Achievement and Letter of Commendations for the work performed there. It considered the Veteran's report of no protective suits, masks, or gloves. It also noted the length of time between exposure and the non-Hodgkin's diagnosis (29 years), the Veteran's family history, to include their known cancers, and the Veteran's post-service occupation as truck driver. The Board finds this memorandum/opinion from the Director of the Post-9/11 Era Environmental Health Service to be probative of the issue and carry much weight. It is weighted because of specialists who provided the opinion. It is also given weight because the memorandum/opinion reflects consideration of the Veteran's background and history, to include his birth in North Carolina and time in the military with consideration of his time in the Marshall Islands (such as time in/around the power plant on Lojwa Island) and his Certificates of Achievement and Letter of Commendations for the work performed there. Additionally, the memorandum/opinion shows consideration of relevant competent medical evidence of record, such as the November 2012 statement from Dr. A.S.W., statements from Dr. J.C.T., and the June 2014 positive opinion by L.C. As the most probative and weighted competent opinions of record weigh against the Veteran's claim for service connection. Thus, service connection based on this dosage estimate and opinion under 38 C.F.R. § 3.311 is not warranted. The Board is also obligated to consider service connection without reference to the radiation regulations. Specifically, the United States Court of Appeals for the Federal Circuit in Combee, 34 F.3d at 1043-44, held that regulations governing presumptive service connection for radiation exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. As noted previously, the Veteran is currently diagnosed with non-Hodgkin's lymphoma, which is recognized as one of the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 for chronic diseases apply to the claims for service connection for non-Hodgkin's lymphoma. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, the Board will evaluate the Veteran's claim under the regulations governing direct service connection, as well as presumptive service connection for chronic disability of non-Hodgkin's lymphoma. The Board finds that most of persuasive of the lay and medical evidence of record demonstrates that non-Hodgkin's lymphoma was not incurred in service, and symptoms of were not chronic in service. Service treatment records, are silent for symptoms, diagnosis, or treatment of non-Hodgkins lymphoma during service. The weight of the lay and medical evidence is against finding that symptoms of non-Hodgkin's lymphoma were continuous after service separation or that symptoms began to manifest to a compensable degree within one year of service separation. The Veteran did not endorse any treatment for skin problems until many years after service and was not diagnosed with the disability until approximately 2008/2009, which is over two decades after separation from service. As noted above, the 2020 memorandum/opinion prepared for the Under Secretary for Health by the Post-9/11 Era Environmental Health Program opined that the Veteran's non-Hodgkin's lymphoma was not related to the radiation exposure the Veteran described in service. Similarly, the Director of VA Compensation Services determined that there was no reasonable possibility that the Veteran's non-Hodgkin's lymphoma was the result of his radiation exposure during service. For the reasons stated above, the Board places much weight on the memorandum/opinion prepared for the Under Secretary for Health by the Post-9/11 Era Environmental Health Program. The Board also notes that the Director, Compensation Service, memorandum conducted with a review that considered the positive nexus opinions of record from the VA examination report and private physician statements. The Board acknowledges the June 2014 VA examination report that contains an opinion that the Veteran's non-Hodgkin's lymphoma was as likely as not related to in-service radiation exposure. However, presumption of service-connection of lymphomas (except Hodgkin's disease) for radiation-exposed veterans and the Board notes that the VA examiner's rationale cited to 38 C.F.R. § 3.309(d): Diseases presumptively service connected for radiation-exposed veterans under the provisions and 38 C.F.R. § 3.309(d)(2). As noted above the Veteran does not qualify as a radiation exposed Veteran and therefore 38 C.F.R. § 3.309(d) is not applicable. As the examiner mistakenly determined that the Veteran's non-Hodgkins lymphoma was presumptively related to active service, this opinion is of little probative value in this matter and its carries little weight for the same reason. Regarding the November 2012 and January 2014 notes for the Veteran's private physicians indicating that the Veteran's non-Hodgkin's lymphoma was related to radiation exposure to active service. The Board finds that these opinions are outweighed by the 2020 memorandum/opinion by the Director of the Post-9/11 Era Environmental Health Service, on behalf of the Under Secretary. In this regard, the Board places less weight on the November 2012 and January 2014 opinion as their author did not rely on the provide dose estimate of .22 rem and they were not as comprehensive as 2020 opinion. In support, the Board finds much weight is given to the thoroughness of the 2020 memorandum/opinion by the Director of the Post-9/11 Era Environmental Health Service that considered the Veteran's military service and jobs and circumstances therein, plus the Veteran's relevant family medical history, the Veteran's post-service occupation, the Veteran's total effective dose equivalent, medical literature and studies, and the 2012 and 2014 opinions themselves. The Board has taken the Veteran's contentions that his claimed non-Hodgkin's lymphoma was caused by or related to his service. The Board has also closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and his claimed disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of non-Hodgkin's lymphoma, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (stating lay persons not competent to diagnose cancer). The Veteran's statements regarding etiology are not competent in this complex medical and environmental matter and thus lack weight. As most of the competent evidence persuasively weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable and the claim of service connection for non-Hodgkin's lymphoma is denied. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *11 (Fed. Cir. Dec. 17, 2021). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.