Citation Nr: 18160668
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 15-29 405
DATE:	December 27, 2018
ORDER
New and material evidence having been received, the application to reopen a previously denied claim of entitlement to service connection for carcinoma of the larynx is granted, and the claim is reopened.
Entitlement to service connection for carcinoma of the larynx, to include as due to radiation exposure, is denied.
FINDING OF FACT
1. In February 2013, service connection for carcinoma of the larynx was denied; a notice of disagreement and/or new and material evidence was not submitted within one year of notice of that decision. 
2. The evidence added to the record since the February 2013 decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for carcinoma of the larynx. 
3. The Veteran’s larynx cancer was not shown in service and is not related to service, to include participation in a radiation risk activity.  
CONCLUSION OF LAW
1. The April 2014 rating decision that denied the Veteran’s application to reopen the claim for entitlement to service connection for carcinoma of the larynx is final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.
2. As the evidence received subsequent to the April 2014 rating decision is new and material, the requirements to reopen the claim for entitlement to service connection for carcinoma of the larynx are met.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from March 1954 to March 1958. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veteran Affairs (VA). A hearing for the case was held in September 2018. 
New and Material Evidence
In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  See Smith v. West, 12 Vet. App. 312, 314 (1999). 
Under the relevant regulation, “new” evidence is defined as evidence not previously submitted to agency decision-makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied.  See Elkins v. West, 12 Vet. App. 209 (1999). 
The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied.  Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement.  See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). 
1. Whether new and material evidence has been received to reopen the issue of entitlement to service connection for carcinoma of the larynx.
The Veteran is seeking service connection for the previously-denied claim of entitlement to service connection for carcinoma of the larynx. Based on the additional evidence added to the record since the previous final denial of the Veteran’s claim, the Board finds that new and material evidence has been added to the record.
The Veteran’s claim was first denied in an February 2013 rating decision.  A review of that rating decision reveals that at the time, the VA declined to grant service connection because the Veteran’s service treatment records were negative for a diagnosis of cancer of the larynx during his military service. There was also no evidence of record to show that the condition was diagnosed to a compensable degree within one year of his discharge from military service. Specifically, the decision noted that the Director of Compensation opined that there is no likely relationship between the Veteran’s cancer of the larynx and his actual level of radiation exposure in service. Therefore, the RO concluded that the Veteran’s carcinoma of the larynx did not commence during his military service. The February 2013 decision became final as he did not appeal it within one year, nor did he submit any new and material evidence within a year of receiving it.  See Buie v. Shinseki, 24 Vet. App. 242 (2011).  This is also the last final denial of his claim.  
Since the last final denial, the Veteran submitted a September 2018 medical treatment record that suggests a connection between his past military radiation exposure and his carcinoma of the larynx. The examiner particularly noted that the Veteran’s cancer has little association with past smoking and alcoholism. 
As the submission address the critical nexus element, the Board concludes that the reopening of the claim for entitlement to service connection for carcinoma of the larynx is warranted, and the claim is reopened.
2. Entitlement to service connection for carcinoma of the larynx, to include as due to radiation exposure, is denied.
The Veteran asserts an entitlement to service connection for carcinoma of the larynx due to his military service, and in particular to ionizing radiation exposure while participating in Operation TEAPOT, a series of atmospheric nuclear detonations conducted at the Nevada Test Site in 1955.
In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).
Establishing service connection for a disability on the basis of exposure to ionizing radiation during service can be shown in two different ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, a radiation-exposed veteran may be presumptively service-connected for any of the specific diseases listed in 38 C.F.R. § 3.309(d), which encompass a variety of different forms of cancer.
Under that section, a radiation-exposed veteran is one who participated in a radiation-risk activity which, by definition, means the onsite participation in a test, or within six months of the test, involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at other certain specified sites. 38 C.F.R. § 3.309(d)(3) (2013). In applying that statutory presumption, there is no requirement for documenting the level of radiation exposure.
If the requirements for presumptive service connection under 38 C.F.R. § 3.309(d)(3) are not met, service connection may also be established if the evidence shows the existence of any other radiogenic diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2) or other claimed diseases considered to be radiogenic through a showing of competent scientific or medical evidence. 38 C.F.R. § 3.311(b)(4).
When it has been determined that: (1) a Veteran has been exposed to ionizing radiation; (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 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) (2013). 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 in-service 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) (2013).
As to whether service connection may be warranted on a presumptive basis, the Defense Threat Reduction Agency (DTRA) submitted a letter in November 2012, acknowledging that the Veteran participated in Operation TEAPOT. 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 cancer of the larynx 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). Therefore, while the Board acknowledges that the Veteran is a radiation-exposed veteran for purposes of 38 C.F.R. § 3.309(d), larynx 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 (2013). It is noted at the outset that larynx 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.  Thus, the salient question is whether it is at least as likely as not that the Veteran's larynx cancer is attributable to ionizing radiation exposure during service. 
Based on the nature, circumstances, and extent of the Veteran's ionizing radiation exposure, and upon the medical evidence of record, the Board concludes that the Veteran’s larynx cancer is less likely than not related to ionizing radiation exposure.  Specifically, the Director of Compensation Services requested a medical advisory opinion from the Undersecretary for Health.  In a January 2013 statement, a representative of the Undersecretary for Health responded that the Veteran’s worst-case exposure included 16 rem of external gamma dose and .5 rem of external neutron dose.  The internal alpha particle committed dose to the larynx was estimated at 3 rem, while the internal committed dose of beta particles plus gamma radiation was 8 rem.  Based on these values, the Undersecretary for Health determined that the Veteran’s larynx cancer was unlikely related to his ionizing radiation exposure.  The Director of Compensation Service concurred with these findings that same month.  Significantly, the Veteran has not provided any evidence to rebut these findings.  
The Board has considered the statement from the Veteran’s physician in September 2018 that there was a “direct correlation” between the Veteran’s larynx cancer and his radiation exposure.  While this statement certainly favors the Veteran’s claim, it is insufficient to outweigh the highly probative opinions provided by the Undersecretary for Health and the Director of Compensation purposes.  Specifically, unlike the physician’s opinion, the Undersecretary’s opinion noted the specific amount of exposure, the committed dose to the larynx and provided a well-explained rationale in support of the negative opinion.  As such, it is the most probative evidence in the record.  Therefore, service connection is not warranted on this basis.
Next, 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 evidence of record, the Board finds that service connection is not warranted on either basis.
As an initial matter, the Veteran’s service treatment records do not indicate symptoms related to the larynx during service or for many years thereafter.  Indeed, the Veteran has not truly asserted that such symptoms began in service or have existed since service.
Additionally, the evidence does not otherwise indicate that there is a relationship between the Veteran’s active duty service and his current disorder.  Indeed, none of evidence indicates a relationship between the Veteran’s larynx cancer and his active duty service, and no treating physician has opined that such a relationship exists.  
The Board is sympathetic to the Veteran’s arguments, this is an issue that is medically complex, and requires medical experts to resolve.  While the Veteran is competent to report having experienced symptoms of chronic voice changes and swallowing issues since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of carcinoma of the larynx. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  
 
Thus, entitlement to service connection for carcinoma of the larynx, to include as due to radiation exposure, is denied.
 
B.T. KNOPE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	I. McGee, Law Clerk 

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