Citation Nr: 1749076	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  10-31 488	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for colon cancer, to include as a result of in-service radiation exposure.  


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

J. Fussell, Counsel



INTRODUCTION

The Veteran served on active duty from May 1964 to May 1967.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of a Veterans Affairs (VA) Regional Office (RO).  

The Board remanded this case in December 2012 for additional development regarding the Veteran's ionizing radiation exposure in January 1966 during participation in the clean-up activities following a nuclear bomb accident near Palomares, Spain.  

This appeal was processed using the Veteran's Benefits Management System (VBMS) and, in addition there is a Virtual VA paperless claims electronic file (now described as Legacy Content Manager Documents).  Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records.  


FINDINGS OF FACT

1.  The Veteran participated in the cleanup of a January 1966 military plane crash in Palomares, Spain and was exposed to ionizing radiation.  

2.  The Veteran was exposed to less than 0.50 rem.  

3.  After service the Veteran developed colon cancer, which was first diagnosed in 2007.  

4.  It is less likely than not that the Veteran's colon cancer is due to or the result of his minimal inservice exposure to ionizing radiation.  



CONCLUSION OF LAW

The criteria for service connection for colon cancer, to include as a result of in-service radiation exposure, are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.311 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA imposes on VA a duty to provide notice of how to substantiate a claim and to assist in evidentiary development.  VA's duty to notify was satisfied by an April 2008 letter.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

As to the duty to assist, the Veteran's service treatment records (STRs) are on file, a copy of which were sent to him in November 2009, and his service personnel records, including DD 1141, Record of Occupational Exposure to Ionizing Radiation.  The Veteran declined to testify in support of his claim.  On file are private treatment records but in VA Form 21-4138, Statement in Support of Claim in October 2008 the Veteran reported that he had received only VA treatment for his colon cancer, and VA treatment records are on file.  

The case was remanded in December 2012 for additional evidentiary development.  Since that time the proper procedures, as outlined in that remand, have been accomplished.  

Neither the Veteran nor his representative has raised any issue with respect to the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).  

In light of the foregoing, the Board concludes that there has been full VCAA compliance.  Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed.Cir. 2007); see also Stegall v. West, 11 Vet. App. 268 (1998).

Background

The STRs are negative for colon cancer.  

The Veteran's DD 1141, Record of Occupational Exposure to Ionizing Radiation reflects that he had such exposure during support of "16 AF operations during the period 25 Jan 66 to 9 Feb 66.  Laboratory report indicate 1.34 picocuries per liter of specimen and 17 percent of permissible peacetime body burden of plutonium."  It further indicates that the exposure occurred at San Javier, Spain, and that the "[e]xposure was to Alpha radiation only."  

Records during the Veteran's military service include a copy of Letter of Commendation dated March 14, 1966 presented for operating a mine detector in the clearing of two large areas of aircraft wreckage from January 25, 1966 to February 10, 1966.  

The Veteran submitted a copy of a letter written to his spouse, postmarked in June 1966, wherein he reported having been exposed to "quite a bit of radiation" in Spain.  

The Veteran's post-service VA treatment records show that he was diagnosed as having colon cancer in August 2007 and underwent a right hemicolectomy the following month. 

In the Veteran's March 2008 VA claim he reported that colon cancer had been diagnosed in August 2007, for which he had had colon surgery in September 2007.  In VA Form 21-4138, Statement in Support of Claim, in May 2008 the Veteran explained the circumstances surrounding his participation in clearing aircraft wreckage near Palomeres, Spain.  In an accompanying Radiation Exposure Questionnaire he reported having smoked cigarettes for 30 years until quitting in 1993 but not otherwise having had postservice carcinogen exposure. 

In a December 11, 2008 report the Army Dosimeter Center stated that had researched files for records of exposure to ionizing radiation for the Veteran but no records of the Veteran could be located.  

In a December 2009 statement from a private physician, K. T., Professor of Surgery at the University of Missouri Health System, it was opined that the Veteran's colon cancer "is likely or not due to his exposure to ionizing radiation in 1966 while serving in the US Army."  

In a May 2008 statement, the Veteran indicated that he was given no protective clothing and was told to take a bath in the Mediterranean Sea to wash off any radioactive materials.  He reported that hand held Geiger counters were used to monitor personal exposure to radiation and that the levels were so high that the counters were unable to give a proper reading.  

In a February 22, 2017 report from the Director of Occupational Health Services, Department of the Army, U.S. Army Public Health Center, it was stated that the program researched and provided estimates of radiation doses to the Department of Veterans Affairs.  It was stated that: 

Based on a review of the job history, records provided, and other historical documents, it was determined that [the Veteran] did assist in the recovery efforts in the aftermath of the Palomares Broken Arrow incident.  This incident involved conventional explosions of two nuclear weapons near the village of Palomares in Spain on January 17, 1966.  These explosions resulted in widespread radioactive contamination of the area.  Of most concern for dose reconstruction is plutonium-239 (Pu-239).  

We requested a search of the U.S. Army Dosimetry Center (ADC) records.  The ADC is the Army's repository for historical records of occupational radiation dosimetry.  The ADC [stated] that there are no unclassified dosimetry records for [the Veteran].  In any event, [the Veteran's] external radiation exposure, if any, would have been negligible compared to any potential internal radiation dose.  However, [the Veteran] provided a copy of his DD Form 1141, which indicated a body burden of plutonium.

In 1975, the Defense Nuclear Agency (DNA) published The Palomares Summary Report and in 2001, Labat-Anderson, Inc. published Palomares Nuclear Weapons Accident, Revised Dose Evaluation Report.  Both of these reports found that the Pu-239 concentrations measured in the first urine specimens collected were suspiciously high.  The DNA report stated that the initial 24-hour urine samples were "not practical, as it required personnel to carry the sample containers into contaminated areas (a logical reason for the high levels in some of the initial samples)."  Therefore, the Pu-239 concentration reported in [the Veteran's] DD Form 1141 was not used to estimate his potential radiation dose.   

The reported Pu-239 concentration in [the Veteran's] urine sample (equivalent to an initial estimate of 17% of the maximum permissible body burden) should have placed him in a follow-up study, the "High 26 Cases Group" discussed in the Labat-Anderson report.  For this dose estimate, we assumed that the mean value of the inhalation intake of the High 26 Cases Group provides a reasonable conservative estimate of the Veteran's intake.  This corresponds to an inhalation intake of 100 nanocuries (3700 becquerels) of Type S Pu-239 with an activity median aerodynamic diameter of 1 micrometer.  The Labat-Anderson report states that radiation doses based on the results of urinanalysis are likely "unrealistically high."  However, to give the benefit of the doubt to the Veteran, we have used the Labat-Anderson report as the basis for our dose estimates.   

The Veteran's disability claim is for colon cancer.  The estimated 50-year committed equivalent doses based on the updated models of the International Commission on Radiological Protection to the organs of the intestinal tract are shown below.  In actuality, about 42 years passed between the accident and year the Veteran's claim was first filed.  

• Radiation dose to the small intestine wall = 1.2 mSv (0.12 rem)  
• Radiation dose to the upper large intestine wall = 1.2 mSv (0.12 rem)  
• Radiation dose to the lower large intestine wall = 1.2 mSv (0.12 rem)  
• Radiation dose to the colon = 1.2 mSv (0.12 rem) 

Although the Veteran's claim was for colon cancer, if the cancer originated in another organ or tissue, there was included a list of estimated radiation doses to all organs and tissues and also included was a list of the radiation doses based on older ICRP models. 

In July 2017 the case was forwarded to the VA Director of Compensation Services for an advisory opinion, pursuant to 38 C.F.R. § 3.311(c).  

In August 2017 the VA Director of Compensation Services reported that in response to a July 2017 memorandum and based on a review of the Veteran's record, his occupational exposure to ionizing radiation does not meet or exceed an annual dose estimate of 5 rem, or 10 rem in a lifetime.  Therefore, an advisory medical opinion from the Under Secretary of Health was unnecessary.  It was reported that the Army Public Health Center sent a letter dated February 22, 2017, confirming the Veteran's participation in the cleanup aircraft wreckage from the Palomares Broken Arrow Incident, and estimated exposure to the following dosage:  

? small intestine wall: 0.12 rem 
? upper large intestine wall: 0.12 rem 
? lower large intestine wall: 0.12 rem 
? colon: 0.12 rem 

The Health Physics Society, in their position statement PS010-2, Radiation Risk in Perspective, revised in May 2016, stated that "in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against quantitative estimation of health risks below an individual dose of 5 rem in one year or a lifetime dose of 10 rem above that received from natural sources."  The position statement went on to state that "there is substantial and convincing scientific evidence of health risks following high-dose exposure.  However, below 5-10 rem (which includes occupational and environmental exposures), risks of health effects are either too small to be observed or are nonexistent."  

It was the VA Director of Compensation Services opinion that there was no reasonable possibility that the Veteran's colon cancer was the result of exposure to ionizing radiation during service.  Attached was a June 2017 memorandum from The Director of the Post 9/11 Era Environmental Health Program (10P4Q).  

The June 2017 memorandum from The Director of the Post 9/11 Era Environmental Health Program (10P4Q) stated that in rendering advisory medical opinions for claims regarding occupational exposure to ionizing radiation the following citation had been used, and which resulted in an opinion of "not likely"  

The Health Physics Society in their position statement PS010-3, Radiation Risk in Perspective, revised in May 2016, states that "The average annual equivalent dose from natural background radiation in the United States is about 3mSV [0.3 rem].  A person might accumulated an equivalent dose from natural background radiation of about 50 mSv [5.0 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 shows evidence of health effects following high-dose exposure (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.  

It was proposed that future occupational radiation exposure claims be adjudicated using the above referenced citation.  If the total dose on either the DD 1141 (Record of Occupational Exposure to Ionizing Radiation) or similar service document indicating radiation exposure or a letter from a parent military service documents estimated radiation exposure for service related activities and the total dose estimate was less than 10 rem during the total time in service (or lifetime if postservice radiation exposure is documented) the VA claim should be adjudicated using the above referenced citation.  

Occupational radiation claims with documented radiation doses of greater than or equal to 10 rem during total time in service (or lifetime if postservice radiation exposure is documented) would be forwarded to VA Central Office.  

Claims for which no service documented radiation exposure exists, and there is no dose estimate provided by the service, i.e., Chernobyl, Hanford, Savannah River, etc. will be forwarded to VA Central Office.  

All claims for non-presumptive illness from "Atomic Veterans", as defined by 38 C.F.R. § 3.309(d) will be forwarded to VA Central Office.   

Principles of Service Connection

For claims based on alleged exposure to ionizing radiation, service connection can be awarded on three different legal bases.  The first basis is a presumptive basis for diseases specific to radiation exposed veterans under 38 C.F.R. § 3.309(d).  The second basis is based on exposure to ionizing radiation with the subsequent development of a radiogenic disease under 38 C.F.R. § 3.311.  Finally, the Veteran is entitled to service connection if he can establish that a disability warrants service connection as defined by the general laws and regulations governing VA compensation entitlement--that is, on a direct or presumptive basis.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

As to service connection generally, establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  38 U.S.C.A. § 1131; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).  Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309(a) (and not merely diseases which are "medically chronic"), including cancer, if the chronicity is either shown as such in service which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word 'chronic'), or manifests to 10 percent or more within one year of service discharge (under § 3.307).  If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, 38 C.F.R. § 3.303(b), but the use of continuity of symptoms is limited to only those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  The presumption may be rebutted by affirmative evidence of intercurrent injury or disease which is a recognized cause of a chronic disability.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).  

In some circumstances lay evidence may establish a medical diagnosis, causation or etiology, i.e., when a layperson (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009) (overruling broad holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007) that competent medical evidence is required when the determinative issue is either medical etiology or medical diagnosis); see also King v. Shinseki, 700 F.3d 1399 Fed.Cir. 2012); 2012 WL 6029502 (C.A.Fed.) (confirming that Davidson, Id., overruled the broad holdings in Buchanan, Id., and Jandreau, Id.).  

Mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  

As to the statutory presumptions, there are specific diseases that may be presumptively service connected if manifest in a radiation-exposed veteran.  38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d).  A "radiation-exposed" veteran is one who participated in a radiation-risk activity.  A "radiation-risk activity" includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites.  38 C.F.R. § 3.309(d)(3).  In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure.  

Colon cancer is among the 21 types of cancer potentially entitled to presumptive service connection under 38 C.F.R. § 3.309(d)(2) for a radiation exposed veteran, which requires that the veteran have engaged in a radiation-risk activity.  

However, the Veteran is not a radiation-exposed veteran within the definition of the 38 C.F.R. § 3.309(d)(3)(ii)(A), as the nuclear bomb detonation near Palomares, Spain was an accident and not an atmospheric nuclear test, or any of the other circumstances listed in 38 C.F.R. § 3.309(d).  

Regardless, however, of whether service connection is warranted on a presumptive basis, service connection can be pursued under 38 C.F.R. § 3.311 on the basis of exposure to ionizing radiation and the subsequent development of a radiogenic disease.  38 C.F.R. § 3.311.  

When there is evidence that a veteran has a radiogenic disease, 38 C.F.R. § 3.311 sets out specific requirements for the development of evidence, one of which is the requirement that the RO obtain a radiation dose estimate from the Department of Defense and refer the claim to the VA Under Secretary for Benefits.  38 C.F.R. § 3.311(a)(2), (b).  

As to other "radiogenic" diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2), found five years or more after service in an ionizing radiation-exposed Veteran may also be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service.  Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding.  38 C.F.R. § 3.311(b)(4).  When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c).  When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health.  38 C.F.R. §§ 3.311(b), (c)(1).  The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is "at least as likely as not" that the disease resulted from inservice radiation exposure or whether there is "no reasonable possibility" that the disease resulted from in-service radiation exposure.  38 C.F.R. § 3.311(c)(1). 

Pursuant to 38 C.F.R. § 3.311, "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes the following: all forms of leukemia, except chronic lymphocytic leukemia; thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer.  38 C.F.R. § 3.311(b)(2)(i) -(xxiv).  38 C.F.R. § 3.311(b)(5) requires that bone cancer become manifest within 30 years after exposure, posterior subcapsular cataracts become manifest within 6 months or more after exposure, leukemia become manifest at any time after exposure, and that other diseases specified in § 3.311(b)(2) become manifest 5 years or more after exposure.  

The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event.  However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet.App. 49 (1990).  

Analysis

The Veteran contends that his postservice onset of colon cancer was due to his exposure to ionizing radiation during military service in January 1966 when he participated in the clean-up activities following a nuclear bomb accident near Palomares, Spain.  The Board acknowledges that the Veteran participated, as he has reported, in the cleanup project.  Nevertheless, it is neither shown nor contended and there is virtually no evidence, lay or medical, that his colon cancer manifested during service or within one year after his May 1967 discharge from active service; nor that it was diagnosed prior to 2007.  Also, the Board finds that the private medical opinion in this case is unpersuasive, for the reasons set forth below.  

Similarly, although colon cancer is listed as a radiogenic disease and so entitled to presumptive service connection, this presumption applies only to a radiation-exposed veteran which, in turn, is defined as one who engaged or participated in one of several listed activities, for example onsite atomic testing, occupation of Hiroshima or Nagasaki, internment as a prisoner of war, and other activities.  However, participation in the cleanup of airplane wreckage in 1966 near Palomeres, Spain, is not such a listed activity.  

Thus, the only means of establishing service connection is under the provisions of 38 C.F.R. § 3.311.  

In this regard, the Board notes that a well-recognized private physician as provided a statement in support of the Veteran's appeal.  Unfortunately, that statement indicates that the Veteran's colon cancer "is likely or not" due to his exposure to ionizing radiation in 1966 while serving in the US Army.  The interpretation of this phrase "likely or not" simply does not rise to the level of establishing, or even suggesting, that it is as likely "as" not that inservice radiation exposure caused the colon cancer.  Moreover, there is nothing within the statement to suggest what evidence was reviewed in rendering the opinion and, even more significantly, there is virtually no rationale set forth.  Also, the physician did not discuss the significance, if any, of the Veteran's history of smoking cigarettes for 30 years.  Moreover, in light of the Veteran's statement that he had only received VA treatment for his colon cancer, it does not appear that the private physician had treated the Veteran for colon cancer or was otherwise familiar with the Veteran's clinical history.  

On the other hand, and weighing against the claim, is the advisory opinion obtained from the VA Director of Compensation, which in turn relied on a radiation dose estimate.  

In substance, the dose estimate obtained logically explained why the Veteran's estimated potential radiation dose reflected in his DD Form 1141 was not used.  The radiation dose to all organs was less than 0.50 rems.  Based on this the VA Director of Compensation Services found that the Veteran's occupational exposure to ionizing radiation did not meet or exceed an annual dose estimate of 5 rem, or 10 rem in a lifetime.  The VA Director relied upon substantial and convincing scientific evidence of health risks following high-dose exposure but that below 5-10 rem the risks of health effects were either too small to be observed or were nonexistent.  Accordingly, the VA Director found that an advisory medical opinion from the Under Secretary of Health was unnecessary.  The Director of Compensation Services concluded that there was no reasonable possibility that the Veteran's colon cancer was the result of exposure to ionizing radiation during service.  

Even though the VA Director, as with the private physician, did not address the Veteran's past long history of smoking cigarettes, a factor which could only have weighed against the claim, the Board finds the conclusion of the Director of Compensation Services to be persuasive and of greater probative value than the opinion of the private physician who made no comment, statement or conclusion with respect to the relationship of the estimated amount of inservice ionizing radiation and the likelihood of developing colon cancer.  

For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim and, so, there is no reasonable doubt to be resolved in his favor.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990).  


ORDER

Service connection for colon cancer, to include as a result of in-service radiation exposure, is denied.  



____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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