Citation Nr: 18131280
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 18-23 024
DATE:	August 31, 2018
ORDER
1. Entitlement to service connection for prostate cancer, to include as being due to ionizing radiation exposure, is denied.
REMANDED
2. Entitlement to service connection for dry eye syndrome and meibomianitis, claimed as blurry, burning eyes, to include as being due to ionizing radiation exposure, is remanded.
3. Entitlement to service connection for hypothyroidism, claimed as non-malignant thyroid disease, to include as being due to ionizing radiation exposure, is remanded.
FINDING OF FACT
The Veteran’s prostate cancer did not have its onset during service, was not manifested to a compensable degree within one year of separation from service, and is not otherwise related to service, to include ionizing radiation exposure.
CONCLUSION OF LAW
The criteria for service connection for prostate cancer, to include as being due to ionizing radiation exposure, have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.311. 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active duty service from February 1948 to October 1953.  The Veteran served honorably in the United States Army.
The Veteran and his daughter, V.S., testified at a video conference hearing in June 2018 before the undersigned Veterans Law Judge (VLJ).  A copy of the hearing transcript is associated with this claim file.
Service Connection
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  See 38 U.S.C. §§1110, 1131; 38 C.F.R. § 3.303(a).  To establish a right to compensation for a present disability, a veteran must show: (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.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).  
Service connection may also be established under 38 C.F.R. § 3.303(b), if a chronic disease, such as prostate cancer, is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes.  Service connection may also be established under 38 C.F.R. § 3.303(b), where a disability in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331, 1340 (Fed. Cir. 2013).  
Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifested to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 
The Veteran’s proposed theory of entitlement is one of presumptive service connection based on an assertion of exposure to ionizing radiation.
VA regulation provides for service connection for radiation exposed veterans on three, different legal bases: (1) presumptively service connected for certain diseases under 38 C.F.R. § 3.309(d); (2) directly service connected after specified development procedures are conducted under the special framework of 38 C.F.R. § 3.311 if the claimed condition is a radiogenic disease; or (3) directly service connected by showing that the disease was incurred in, or aggravated by, service.
In this case, the Veteran is a “radiation-exposed veteran” as defined by 38 C.F.R. § 3.309(d)(3) because while serving on active duty he participated in radiation-risk activity.  “Radiation-risk activity” is defined to mean on site participation in a test involving the atmospheric detonation of a nuclear device.  38 C.F.R. § 3.309(d)(3)(ii).
38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation.  Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifested to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation exposure in service.
A radiogenic disease is defined as a disease that may be induced by ionizing radiation.  The Board notes that prostate cancer is listed under 38 C.F.R. § 3.311 as radiogenic diseases.  
When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Set forth below is the Board’s analysis for the Veteran’s claim for entitlement to service connection for prostate cancer, to include as being due to ionizing radiation exposure under the presumptive provision of 38 C.F.R. § 3.309, under 38 C.F.R. § 3.311 and under the provision for a direct service connection claim.  
1. Entitlement to service connection for prostate cancer due to ionizing radiation exposure.
After review of the evidence of record, the preponderance of the evidence weighs against the Veteran’s claim for service connection for prostate cancer due to ionizing radiation exposure. 
The Veteran testified before the undersigned VLJ in June 2018 that he was diagnosed with prostate cancer in September 2001.  Private medical records show that in September 2007 he was treated with brachytherapy and a cystoscopy for his prostate cancer.
The Defense Threat Reduction Agency confirmed that the Veteran participated in Operation UPSHOT-KNOTHOLE in 1953.  Thus, he is a radiation-exposed veteran for purposes of service connection under 38 C.F.R. § 3.309(d).  However, service connection is nonetheless not warranted on a presumptive basis, as prostate cancer is not one of the disabilities specifically listed as a disease that is specific to radiation-exposed veterans in 38 C.F.R. § 3.309(d)(2).       
While cancer of the urinary tract is one of the disorders listed in 38 C.F.R. § 3.309(d)(2), the term urinary tract is explicitly confined to the kidneys, renal pelves, ureters, urinary bladder, and urethra.  Therefore, while the Board acknowledges that the Veteran is a radiation-exposed veteran for purposes of 38 C.F.R. § 3.309(d), prostate cancer is not a disability that is listed as a disease that is specific to radiation-exposed veterans, and service connection on a presumptive basis is not warranted under 38 C.F.R. § 3.309(d)(2).
Service connection on a presumptive basis having not been established, the Board next must consider whether service connection is warranted as a radiogenic disease under 38 C.F.R. § 3.311.  It is noted at the outset that prostate cancer is considered a radiogenic disease for purposes of this section.  Furthermore, 38 C.F.R. § 3.311(b)(2)(xxiv) establishes that any form of cancer will be a radiogenic disease.
In this case, the VA Regional Office (RO) conducted development in compliance with 38 C.F.R. § 3.311.  The Defense Threat Reduction Agency confirmed that the Veteran participated in Operation UPSHOT-KNOTHOLE at the Nevada Test Site in 1953 and estimated that the Veteran’s total reported dose was 17.5 rem.  
In a March 2016 Administrative Decision, the RO found that following review of the evidence in its entirety, in its opinion there was no reasonable possibility that the Veteran’s prostate cancer resulted from radiation exposure during service.  The RO found that the Veteran could have received no more than a total reported dose of 17.5 rem.  The RO also noted that there is a December 2006 memorandum from the Chief Public Health and Environmental Hazards Officer, which provided instructions for expedited methodology processing using worst-case dose assessment.  The RO noted that all of the adjusted total prostate doses for Hiroshima/Nagasaki and Nevada Test Site cases are less than the applicable screening doses.  The RO applied this methodology to the facts in the Veteran’s case and concluded that it is unlikely that prostate cancers for these groups of veterans can be attributed to exposure to ionizing radiation in service. 
The Board considers these actions to substantially comply with VA duties to estimate dose exposure and obtain appropriate medical opinions under 38 C.F.R. § 3.311. 
While the Board acknowledges that the Veteran asserts that his exposure to ionizing radiation and nuclear testing during service caused his prostate cancer, the Board finds that medical expertise is required to make this finding.  Here, the methodology established by the Chief Public Health and Environmental Hazards Officer has provided a scientific application to determine whether prostate cancer was caused by participation in Operation UPSHOT-KNOTHOLE in 1953.  Here, the Board finds that pursuant to the findings based upon scientific methodology, the preponderance of the evidence weighs against the Veteran’s claim for service connection for prostate cancer under 38 C.F.R. § 3.311.
Although it has been the Veteran’s primary assertion that his prostate cancer is attributable to his ionizing radiation exposure, he is nevertheless not precluded from establishing service connection with proof of actual direct causation as due to active duty service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  However, based on the review of the evidence of record, the Board finds the preponderance of the evidence is against a finding for service connection on a direct basis.
The first required element for a direct service connection claim is a current disability.  In this case, the Veteran was diagnosed with prostate cancer, in September 2001, according to the Veteran, and private medical records show that he was treated for prostate cancer in September 2007.  Therefore, the Veteran meets the first element for a direct service connection claim as he has a current disability.  
Regarding the second element for a direct service connection claim, the Board concedes that the Veteran was exposed to ionizing radiation in-service and therefore had an in-service event.  Therefore, the Veteran meets the second required element for a direct service connection claim which is an in-service event, disease or injury. 
The third required element for a direct service connection claim is a causal relationship between the current disability and the disease or injury incurred during service.  The Board notes that at the June 2018 video conference hearing before the undersigned VLJ, the Veteran’s representative cited to an article from the Center for Environmental Health, titled Prostate Cancer and Exposure to Ionizing Radiation.  The Board has considered this article.  However, pursuant to the findings and the methodology developed by the Chief Public Health and Environmental Hazards Officer, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim.  Moreover, the length of time between the Veteran’s separation from service and diagnosis for prostate cancer is a factor which tends to weigh against the claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  Therefore, the Veteran’s claim remains denied.
The Board has also considered the lay statements made by the Veteran relating his prostate cancer to ionizing radiation exposure during service.  At the video conference hearing, the Veteran testified that his private physician, Dr. S., made a link between the Veteran’s prostate cancer and his involvement in Operation UPSHOT-KNOTHOLE in 1953.  While the Veteran is certainly competent to report what he was told by a physician, the Board does not find the statement changes the finding that the preponderance of the evidence is against the claim.  First, the scientific methodology established by the Chief Public Health and Environmental Hazards Officer was developed specifically to determine the impact of ionizing radiation exposure for veterans who participated in Operation UPSHOT-KNOTHOLE in 1953 and the application of the methodology finds no link between participation in the Operation and prostate cancer.  Next, the length of time between the Veteran’s separation from service in 1953 and his diagnosis for prostate cancer in 2001 weighs heavily against a finding that the Veteran’s exposure to ionizing radiation during service resulted in his diagnosis for prostate cancer.   
In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for prostate cancer due to ionizing radiation exposure.  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 applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
REASONS FOR REMAND
2. Entitlement to service connection for dry eye syndrome and meibomianitis, claimed as blurry, burning eyes, to include as due to ionizing radiation exposure. 
3. Entitlement to service connection for hypothyroidism, claimed as non-malignant thyroid disease as being due to ionizing radiation exposure.
The Veteran is seeking entitlement to service connection for dry eye syndrome and meibomianitis, claimed as blurry, burning eyes, and hypothyroidism, claimed as non-malignant thyroid disease, both of which he asserts are due to ionizing radiation exposure.  The Board notes that the Veteran has not been afforded VA examinations for his bilateral eye disabilities of dry eye syndrome and meibomianitis or for his thyroid disability of hypothyroidism and that the facts meet the requirements for entitlement to VA examinations in connection with these claims.  Therefore additional development is required before a decision can be rendered by the Board. 
During the June 2018 video conference hearing before the undersigned VLJ, the Veteran’s representative submitted an article from the Academy of Ophthalmology, which discussed how most cases of ocular exposure to ionizing radiation involve the conjunctiva, cornea, or possibly lacrimal glands.  The Veteran testified that during service he went to an atomic test cite in Nevada and had to observe what happened in the bomb detonation area after it exploded.  He also testified that he noticed dry eyes after this assignment while on active duty and that it still bothered him.  The Veteran has submitted scientific evidence that ocular exposure to ionizing radiation often impacts or involves the lacrimal glands, cornea or conjunctiva.  Therefore, the Board is remanding this issue of entitlement to service connection for dry eye syndrome and meibomianitis to afford the Veteran a VA examination for his bilateral eye diseases and for a medical finding as to whether the Veteran’s bilateral eye diseases of dry eye syndrome and meibomianitis involve the lacrimal glands, cornea or conjunctiva.
Also at the June 2018 video conference hearing, the Veteran testified that he was diagnosed with hypothyroidism approximately 10 years ago by his general practitioner.  During the video conference hearing, the Veteran’s representative submitted an article from the Journal of Clinical Endocrinology and Metabolism, volume 90, August 1, 2005, p. 4587 - 4592, which discussed the association between occupational exposure to ionizing radiation and autoimmune thyroid disease.  Based upon the Veteran’s exposure to ionizing radiation, his testimony and the article discussed and submitted by his representative, the Board finds that a VA examination is necessary to decide the claim.
These matters are REMANDED for the following actions:  
1. Undertake appropriate development to obtain any outstanding medical records pertinent to the Veteran’s claims for entitlement to service connection for dry eye syndrome and meibomianitis, claimed as blurry, burning eyes and for hypothyroidism, claimed as non-malignant thyroid disease.
2.  Schedule the Veteran for an eye examination regarding his claim for service connection for dry eye syndrome and meibomianitis, claimed as blurry, burning eyes. The Veteran’s claims file should be made available to and reviewed by the examiner in conjunction with the opinion.  
The examiner is asked to review the article submitted by the Veteran from the Academy of Ophthalmology: Ionizing Radiation.  See VBMS entry with document type, “Web / HTML Documents,” receipt date 06/08/2018, on page 11.  
The examiner is also asked review the private treatment records from July 2013 showing that the Veteran was prescribed restasis eye drops for both eyes and this prescription is used to treat severe dry eye and from April 2015, assessing that the Veteran has meibomianitis associated with dryness and dry eye syndrome as secondary to tear deficiencies.  See VBMS entries (there is more than one) with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 04/28/2015.
After a review of the file, including the article listed above and examination of the Veteran, the examiner is asked to answer the following questions:
(a.)	Please provide an opinion as to whether the Veteran’s dry eye syndrome and meibomianitis involve the lacrimal glands, cornea or conjunctiva.
(b.)	Please provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s diagnoses of dry eye syndrome and meibomianitis (or any other eye diagnosis found), either had its onset in service or is due to his in-service exposure to ionizing radiation.
The examiner must provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion.  If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered.
3. Schedule the Veteran for an examination in connection with his claim for service connection for hypothyroidism for purposes of determining the likely etiology of the hypothyroidism. The Veteran’s claims file should be made available to and reviewed by the examiner in conjunction with the opinion.  
The examiner is asked to review the article submitted by the Veteran from the Journal of Clinical Endocrinology and Metabolism, volume 90, August 1, 2005, p. 4587 - 4592, which concluded that exposure to ionized radiation is a risk to the thyroid.  See VBMS entry with document type, “Web / HTML Documents,” receipt date 06/08/2018 on pages 5-10.  
After a review of the file, including the article listed above and examination of the Veteran, the examiner is asked to offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s diagnosis of hypothyroidism, claimed as non-malignant thyroid disease, is related to the Veteran’s in-service exposure to ionizing radiation.
The examiner must provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion.  If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered.
 
 
A. P. SIMPSON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Morgan, Associate Counsel 

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