Citation Nr: 0000870 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 94-16 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for rectal cancer due to ionizing radiation. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The veteran had active military service from February 1944 to May 1946 and from July 1946 to July 1948. This matter came before the Board of Veterans' Appeals (Board) on appeal from July 1992 and September 1993 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, denying the veteran entitlement to service connection for cancer involving the colon or rectum with metastases to the lung. In November 1996, the Board denied the veteran's claim for entitlement to service connection for rectal cancer due to exposure to ionizing radiation. The veteran appealed. In August 1998, the United States Court of Veterans appeals, now the U.S. Court of Appeals for Veterans Claims (Court) granted a joint motion for remand pursuant to its decision in Hilkert v. West, 11 Vet. App. 284 (1998). The Court found in that decision that 38 C.F.R. § 3.311 requires the Undersecretary for Benefits and, in effect, because medical expertise is required, the Undersecretary for Health to specifically articulate his or her consideration of each of the factors listed at § 3.311(e). To comply with Hilkert and pursuant to the joint remand, the Board, in December 1998, remanded this case to the RO for resubmission to the Undersecretary for Benefits for further analysis under § 3.311(e). While in remand status, the Court granted the Secretary's motion for en banc review of its decision in Hilkert and in Hilkert v. West, 12 Vet. App. 145 (1999) (en banc) withdrew its earlier opinion. In so doing, the Court held, contrary to its earlier opinion, that a discussion by the Undersecretary for Benefits of all the factors under 38 C.F.R. § 3.311(e) is not required if the Undersecretary for Benefits recommends that there is "no reasonable possibility that the veteran's disease resulted from radiation exposure in service" as authorized under 38 C.F.R. § 3.311(c)(1)(ii). In light of that decision, the claims folder was returned to the Board in March 1999 without action by the RO. In April 1999 the Board issued a new decision denying service connection for rectal cancer. The veteran appealed again to the Court, which in November 1999 granted the joint motion by the parties to vacate and remand the April 1999 Board decision because the veteran had not had a 60-day opportunity to respond to a March 1999 supplemental statement of the case. In December 1999 the veteran submitted a new medical opinion, described below, waived RO consideration and processing of this evidence as provided in 38 C.F.R. § 20.1304(c) (1999), and moved that the case be advanced on the Board's docket due to the advanced state of his cancer. This motion was granted. FINDINGS OF FACT 1. In November 1945, the veteran was present at Nagasaki, Japan, and was exposed to a maximum possible dose of ionizing radiation equal to less than 1 rem. 2. Rectal cancer was not manifested in service or within the first post service year, and there is no evidence that it is attributable to disease or injury during service, other than exposure therein to ionizing radiation. 3. There is no reasonable possibility that the veteran's rectal cancer resulted from radiation exposure in service. CONCLUSION OF LAW Rectal cancer was not incurred in or aggravated by service, may not be presumed to have been incurred therein, and is not due to exposure to ionizing radiation in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background Initially, we note that we have found that the veteran's claim for entitlement to service connection for rectal cancer is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented a claim, which is not inherently implausible. We are also satisfied with regard to this claim that all relevant facts have been properly developed and that the clinical data on file are sufficient for us to render a fair and equitable determination of the matter at hand. In order for service connection to be granted, it must be shown that there is a disability present, which is the result of disease or injury which was incurred or aggravated in service or in the case of certain diseases, to include cancer, manifested to a compensable degree within one year from service separation. 38 U.S.C.A. §§ 101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (1998). A showing of incurrence may be established by affirmatively showing inception in service, and each disability must be considered on the basis of the places, types and circumstances of service as shown by service records and other evidence. Service connection may be established for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303. The veteran contends that he was exposed to ionizing radiation while on board the U.S.S. Sperry, which was in Nagasaki during the American Occupation of Japan. He argues that he now has rectal cancer as a result of his in-service exposure. The veteran's service medical records are negative for any findings indicative of cancer. Post service medical records reveal that the veteran was diagnosed with adenocarcinoma of the rectum (also referred to as adenocarcinoma of the colon in March 1990), and with metastatic adenocarcinoma to the right lung in September 1989. He underwent chemo and X-ray therapy, in addition to various surgical procedures for identification and resection of the lesions. In March 1992, the veteran submitted a claim for service connection for colon and right lung cancer. Several lay statements pertaining to the veteran's presence in Nagasaki and Hiroshima during World War II were received by the RO in March 1993, including statements from Laura M. Kennedy (wife of the Executive Officer of the Sperry, John E. Kennedy), and Innis O'Rourke, Jr. (a fellow shipmate on the Sperry). Excerpts from the veteran's diary indicating that the ship was in Sasebo and Nagasaki were also received by the RO in March 1993. In April 1993, the Defense Nuclear Agency (DNA) (now the Defense Threat Reduction Agency) confirmed that the veteran was present at Nagasaki during the American Occupation of Japan. A scientific dose reconstruction determined that the maximum possible radiation dose any individual serviceman may have received, from being in Nagasaki, was less than 1 rem. A medical opinion from the Assistant Chief Medical Director for Public Health and Environmental Hazards (ACMD), for the Under Secretary for Health, submitted in February 1996, stated that a statistically significant increased risk for rectal cancer has been found only after extremely high radiation therapy doses and therefore, it is unlikely that the veteran's adenocarcinoma of the rectum can be attributed to exposure to ionizing radiation in service. A February 1996 letter from the Director of VA's Compensation and Pension Service, for the Under Secretary for Benefits, indicated that the ACMD's opinion, with which the Director agreed, advised that it was unlikely that there is adenocarcinoma of the rectum resulting from the veteran's exposure to ionizing radiation in service. As a result, the Director opined that there was no reasonable possibility that the veteran's disability was a result of such exposure. A lay statement from John B. Morland (Captain of the Sperry from April 1945 to August 1946) was received by the RO in February 1996, confirming the Sperry's presence in various Japanese ports, including Nagasaki. A September 1999 letter from Barry L. Singer, M.D., indicates that he reviewed the veteran's service and post-service records, including the "appeals statement" that the veteran had minimal radiation exposure. Dr. Singer states, [h]owever, there is no family history of rectal cancer, and it is my opinion that within reasonable medical certainty, the exposure that this patient had to radiation therapy [sic] in 1945 was a contributing factor to the development of his rectal cancer. Dr. Singer discusses the time from exposure to development of the cancer, and states [i]t is my opinion therefore, that the time sequence is appropriate for the development of this rectal adenocarcinoma. It is my opinion that the cancer, with reasonable medical certainty, occurred approximately 40 years or so after his exposure to radiation which would be an appropriate time sequence. In addition, the exposure to radiation in my opinion was the significant contributing factor in the development of this rectal cancer. The Board notes that Dr. Singer is a diplomate in internal medicine, oncology, and hematology. II. Analysis The veteran's service medical records are negative for rectal cancer or, for that matter, cancer of any sort. Therefore, and because the veteran is shown not to have been diagnosed with cancer, adenocarcinoma of the rectum with metastatic adenocarcinoma to the lung, until the late 1980's, approximately four decades after service, the veteran's cancer was first manifested too remote in time from service to support a claim that it is related thereto on a direct or presumptive basis under the provisions of 38 C.F.R. § 3.303 and/or 38 C.F.R. § 3.307. The Board further observes that there is nothing in the veteran's post service treatment records to suggest that the veteran's cancer is in any way related to his period of active service. Because the veteran is claiming his cancer to have been caused by in-service exposure to radiation, his appeal must also be adjudicated with consideration of the provisions of 38 C.F.R. §§ 3.309 and 3.311. This process is described in Hardin v. West, 11 Vet. App. 74, 77 (1998): Service connection for a condition which is claimed to be attributable to ionizing radiation exposure during service may be established in 1 of 3 different ways. Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997). First, there are 15 types of cancer which are presumably service connected. 38 U.S.C.A. § 1112(c). Second, 38 C.F.R. § 3.311(b) (1996) provides a list of "radiogenic diseases" which will be service connected provided that certain conditions specified in that regulation are met. Third, direct service connection can be established by "show[ing] that the disease or malady was incurred during or aggravated by service," a task which "includes the difficult burden of tracing causation to a condition or event during service." Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Qualification under the presumptive provisions of 38 U.S.C.A. § 1112(c) occurs when a veteran suffers from one of the 15 listed cancers, and established participation in a "radiation risk activity" defined as: (i) On-site participation in a test involving the atmospheric detonation of a nuclear device. (ii) The Occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 6, 1946. (iii) Interment as prisoner of war in Japan (or service on active duty in Japan immediately following such interment) during world War II which (was determined by the Secretary) resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans described in clause (ii) of this subparagraph. In this regard, the Board notes that while the veteran's cancer was variously diagnosed at one point as rectal versus colon cancer, with metastasis to the right lung, these types of cancer are not currently to be found on the list of "diseases specific to radiation-exposed veterans." 38 C.F.R. § 3.309(d)(2). Rectal, colon and lung cancer, however, are considered to be potentially radiogenic diseases under 38 C.F.R. § 3.311. The DNA confirmed the veteran's presence in Nagasaki and his exposure to less than 1 rem of ionizing radiation. Nevertheless, based on the ACMD's opinion that it was unlikely that the veteran's adenocarcinoma of the rectum could be attributed to this exposure to ionizing radiation in service, the Director of the Compensation and Pension Service has concluded that there is no reasonable possibility that the veteran's cancer was the result of his exposure to ionizing radiation. Resolution of the case rests on weighing the opposing opinions. The Board finds Dr. Mather's opinion more persuasive than Dr. Singer's. Dr. Singer points out that there is no family history of rectal cancer and that the development of the cancer was at an appropriate time after the exposure. This would be persuasive if it was established that all rectal cancers must result from either family history or radiation exposure, but Dr. Singer does not say that. His reasoning appears to be a process of eliminating all other factors that might have contributed to the development of this cancer, but he eliminates only one. On the other hand, Dr. Mather's opinion is based on the premise that a statistically significant increase in the risk of rectal cancer occurs only after extremely high radiation therapy doses, and provides a basis in the literature for that premise. Given that a dose of less than 1 rem is shown by the evidence, and uncontroverted by a higher dose estimate from a credible source, see 38 C.F.R. § 3.311(a)(3) (1999), the Board finds Dr. Mather's opinion more persuasive. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for service connection for rectal cancer due to ionizing radiation exposure. The benefit of the doubt doctrine, therefore, is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for rectal cancer is denied. J. E. DAY Member, Board of Veterans' Appeals