Citation Nr: 0004960 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-03 082A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a skin condition due to exposure to ionizing radiation during service. 2. Entitlement to service connection for kidney stones due to exposure to ionizing radiation during service. 3. Entitlement to service connection for carcinoma of the right kidney with nephrectomy due to exposure to ionizing radiation during service. 4. Entitlement to service connection for prostate cancer with transurethral resection (TUR) due to exposure to ionizing radiation during service. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran's had active duty service from March 1945 to December 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the veteran's claims as not well grounded. FINDINGS OF FACT 1. The veteran is not a radiation-exposed veteran and did not participate in a radiation risk activity in service. 2. There is no competent medical evidence of a nexus between the veteran's current skin disorder and claimed exposure to ionizing radiation during service. 3. There is no competent medical evidence of record that the veteran currently has a disability of kidney stones. 4. There is no competent medical evidence of a nexus between the veteran's carcinoma of the right kidney with nephrectomy and claimed exposure to ionizing radiation during service. 5. There is no competent medical evidence of a nexus between the veteran's prostate cancer with TUR and claimed exposure to ionizing radiation during service. CONCLUSIONS OF LAW 1. The claim for service connection for a skin condition due to exposure to ionizing radiation during service is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for kidney stones due to exposure to ionizing radiation during service is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim for service connection for carcinoma of the right kidney with nephrectomy due to exposure to ionizing radiation during service is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The claim for service connection for prostate cancer with TUR due to exposure to ionizing radiation during service is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for diseases or injuries incurred or aggravated while in active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (1999). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Before reaching the merits of a claim for service connection, however, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded," that is, the claim must be plausible and capable of substantiation. See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability (established by medical diagnosis); of incurrence or aggravation of a disease or injury in service (established by lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (established by medical evidence). See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The veteran contends that he has skin cancer, kidney stones, nephrectomy of the right kidney due to carcinoma, and prostate cancer with TUR, which are due to exposure to ionizing radiation during service. He contends that, from February 1946 to July 1946, which coincides with the period of Operation CROSSROADS, he was assigned to a special squadron at Roswell Army Air Field making parts used in the assembly of the bombs for Atomic Bomb Tests "Abel" and "Baker." He contends that his work as a machinist in a support status during this time, machining parts used to assemble the test bombs at the same site where radioactive materials were stored and used in the making of test bombs, makes it probable that he was exposed to radiation. He contends that his activity during this time qualifies as "onsite participation" in a test involving atmospheric detonation in accordance with 38 C.F.R. § 3.309(d)(iv), that is, the "performance of official military duties in connection with . . . equipment used in direct support of the nuclear test." In this veteran's case, the Board notes that the veteran's service medical records probably do not exist. A return from the National Personnel Records Center (NPRC), received in April 1996, reflects that the veteran's records were possibly burned in a fire which occurred at NPRC. Additional development in this case, however, includes development throughout the Defense Special Weapons Agency (DSWA), which included a search of morning reports for the veteran's unit. There is no indication additional records exist. In the rating decision on appeal, the veteran was informed regarding the unavailability of the service medical records. Based on this evidence, the Board finds that further efforts to develop for service records are not warranted. See Godwin v. Derwinski, 1 Vet. App. 419, 425 (1991). In implementing the 1984 Veterans Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, section 3.311b of title 38, Code of Federal Regulations, sets up a standard for review of claims based on radiation exposure and provides that if a veteran was exposed to ionizing radiation due to atmospheric nuclear testing and developed a radiogenic disease which manifested within the specified time period, the case will be referred to the VA Under Secretary for Benefits (formerly the VA Chief Benefits Director) for review. Effective May 1, 1988, Public Law 100- 321, the Radiation-Exposed Veterans Compensation Act of 1988, amended former 38 U.S.C.A. § 312 (now 38 U.S.C.A. § 1112(c) (West 1991)) and elevated the regulatory criteria now found at 38 C.F.R. § 3.309(d) (1999) to a statutory presumption of service connection. In Ramey v. Brown, 9 Vet. App. 40, 44 (1996) (citing Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994)) the Court held that service connection for disabilities claimed to be due to ionizing radiation exposure during service can be accomplished in three ways. See also Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are 15 types of cancer which will be presumptively service connected by statute if they become manifest in a radiation-exposed veteran. 38 U.S.C.A. § 1112(c)(2)(A)-(O) (West 1991); 38 C.F.R. § 3.309(d) (1999). A Note to 38 C.F.R. § 3.309(d)(2) indicates that the term cancer of the "urinary tract" includes cancer of the kidneys. Skin cancer (basal cell carcinoma) and prostate cancer are not included as presumptive diseases. 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. "Onsite participation" means presence at the test site, or performance of military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test, during an official operational period of an atmospheric nuclear test. The operational period for Operation CROSSROADS was from July 1, 1946 through August 31, 1946. 38 C.F.R. § 3.309(d)(3) (1999). As to the second method, 38 C.F.R. § 3.311(b)(2) (1999) provides a list of diseases which will be service connected provided that certain conditions, including the regulatory time period when the diseases must become manifest, specified therein and pertaining to radiation exposure, are met. The list includes "kidney cancer," "prostate cancer," and "any other cancer." Prostate cancer, kidney cancer, and any other cancer not otherwise listed must have become manifest 5 years or more after exposure. 38 C.F.R. § 3.311(b)(5)(iv) (1999). The provisions of 38 C.F.R. § 3.311 provide for development of claims based on a contention of radiation exposure during active service and post-service development of a radiogenic disease. Section 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 dose assessment will be made. The case will be referred to the Under Secretary for Benefits for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the veteran's disease resulted from radiation exposure during service. 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 or their survivors. See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). Third, direct service connection can be established by showing that the disease was incurred in or aggravated by service, which includes the "difficult burden of tracing causation to a condition or event during service." See Combee, supra. Subsection 3.311(b)(4) provides that, even if the claimed disease is not one that is already recognized as radiogenic under subsection 3.311(b)(2), the claim will still be considered, or developed, pursuant to 38 C.F.R. § 3.311 if the appellant cites or submits competent scientific or medical evidence that the claimed disease is radiogenic. As to the issue of service connection for kidney stones, there is no competent medical evidence that the veteran currently has a disability of kidney stones. The evidence reflects that in September 1977 the veteran was hospitalized for right ureteral calculus. During the hospitalization, the veteran passed a stone and repeat flat plate indicated that the previous density was no longer demonstrated, and the veteran was, thereafter, asymptomatic. The final diagnosis included that the veteran's right ureteral calculus had been treated and improved. Subsequent treatment records beginning in 1980 reflect no disability of kidney stone. The Court has held that "[i]n order for the veteran to be awarded a rating for service-connected [disability], there must be evidence both of a service-connected disease or injury and a present disability which is attributable to such disease or injury." Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110 (West 1991). In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no competent medical evidence of a current disability of kidney stones, the Board must find that the veteran's claim for service connection for kidney stones is not well grounded. 38 U.S.C.A. § 5107(a). As to the issues of service connection for a skin condition, kidney cancer, prostate cancer, with respect to the first method of establishing service connection for presumptive diseases manifest in radiation-exposed veterans, the Board notes that 38 C.F.R. § 3.309(d) limits service connection to the diseases listed in paragraph (d)(2). Skin cancer (basal cell carcinoma) and prostate cancer are not diseases listed in paragraph (d)(2) subject to service connection on a presumptive basis. While kidney cancer is included, this presumptive provision by its terms applies only to "radiation-exposed" veterans. As the discussion below demonstrates, this presumptive provision regarding kidney cancer does not apply because there is no evidence to demonstrate that the veteran participated in a radiation risk activity in service, and is, therefore, not a radiation- exposed veteran. With respect to the second method which provides for the development of claims based upon a contention of exposure to ionizing radiation, the Board notes that kidney cancer and prostate cancer are radiogenic diseases specifically listed in section 3.311(b)(2), and skin cancer would be included under this provision under "any other cancer." Likewise, because the veterans is not a radiation-exposed veteran, the development of claims under this provision is not warranted. The veteran's Enlisted Record and Report of Separation reflect active duty service from March 1945 to December 1946, with a military occupational specialty of machinist from September 1945 to December 1946. The veteran's participation in Atomic Bomb Tests "Abel" and "Baker" consisted of work as a machinist in a support status during Operation CROSSROADS, machining parts used to assemble the test bombs. A letter from the DSWA dated in January 1997 reflects that atmospheric nuclear detonation in "Abel" occurred on July 1, 1946 and "Baker" on July 25, 1946. Morning reports reflect that the veteran had duty at Roswell Army Air Field, New Mexico, from February 16, 1946 through July 22, 1946, with temporary duty at Sandia Base, Albuquerque, new Mexico, from April 6, 1946 to July 17, 1946. In a Statement in Support of Claim dated in March 1996, the veteran wrote that during this time he worked as a machinist and, sometimes, as a radio operator, and was sent to different places for repair work and assembling "A" bombs to be used at test sites. He wrote that they wore badges in the different areas. In a statement received in August 1998, the veteran wrote that he believed that he "may or was exposed to contamination in some way while working on these projects." Although the work described by the veteran occurred at the site in New Mexico where he alleges radioactive materials were stored and used in the making of test bombs, the evidence does not demonstrate the veteran was exposed to radioactive materials during that time. At the personal hearing in February 1999, the veteran testified that: he worked on various things on which he was requested, including, for example shafts and bearings; he did the rough machines, then passed them on to someone else to do the finished work; because of the higher level of security, he was required to wear a badge in all areas, including turning in the badge and picking up another one when entering a different area; they loaded teardrop shaped bombs with cement; he did not work in an environment that required laboratory clothes, gloves, or masks; he was not checked daily with a Geiger counter; they did not routinely take the badges and read them; and the badges did not have markings on them to see where they were from. While the veteran's efforts undoubtedly contributed machine parts used in the construction of bombs ultimately used at the detonation test site in the Bikini Atoll, there is no evidence that the veteran was exposed to radiation during this time. This conclusion is based largely on the veteran's own statements and testimony that he passed his work on to someone else to do the finished work, the badges did not appear to be dosimeter badges, he never wore special clothing, and was not checked to measure radiation exposure. While the veteran at times asserted that he was probably exposed to radiation, at other times he only asserts that there was a possibility that he may have been exposed to radioactive materials. The veteran's only reported contact with bombs involved the placement of cement in them, not radioactive materials. Therefore, the veteran's work may only be considered indirect support of such nuclear testing. The Board finds that the veteran's participation in Atomic Bomb Tests from February to July 1946, although during the period of Operation CROSSROADS, including work on machine parts used to assemble the bombs, did not constitute the performance of official military duties in connection with equipment used "in direct support of the nuclear test." 38 C.F.R. § 3.309(d)(iv). The Board notes the veteran's representative's request for development of this claim, to include request for radiation dosage assessment by DD Form 1141. As the evidence does not demonstrate radiation exposure, however, the dose estimate information was not submitted to the VA Under Secretary of Health for an opinion as to radiation exposure. See Wandel v. West, 11 Vet. App. 200 (1998) (where the DNA § 3.311 dose estimate shows that the veteran was exposed to no ionizing radiation, "further development" under § 3.311 is not required, i.e., VA is not required to forward the claim for consideration by the Under Secretary for Benefits). The veteran was first diagnosed as having a skin disorder in 1986, 40 years after claimed exposure. Subsequent diagnoses include seborrheic dermatitis, seborrheic keratosis, basal cell carcinoma of the mid back, and fibroepithelioma of the skin of the right back. He was first diagnosed with kidney cancer in November 1993, 47 years after exposure, which resulted in a right nephrectomy in November 1993. He was first diagnosed with prostate cancer in 1980, notably over 34 years after claimed exposure, and underwent a transurethral resection of the prostate gland in October 1980. The Board must find that the veteran's claims on the basis of exposure to ionizing radiation are not well grounded. See Davis, 10 Vet. App. 209. With regard to the third method, which provides for direct service connection based on medical nexus evidence relating the veteran's currently diagnosed disease to radiation exposure in service, the Board also finds that there is no competent medical or scientific evidence linking the veteran's current disabilities to his claimed in-service radiation exposure. Combee. With regard to the veteran's assertion of etiology, a lay person is competent to describe symptoms observed at any time, but is not competent to offer evidence which requires medical knowledge, such as a determination of medical etiology. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Grottveit, 5 Vet. App. at 93; Stadin v. Brown, 8 Vet. App. 280, 284 (1995). If the only evidence on a medical issue is the testimony of a lay person, the claimant does not meet the burden imposed by 38 U.S.C. section 5107(a) and does not have a well-grounded claim. Unsupported by medical evidence, a claimant's personal belief, however sincere, cannot form the basis of a well- grounded claim. Moray v. Brown, 5 Vet. App. 211, 214 (1993). Additionally, in his application for compensation in February 1996, the veteran wrote that none of the claimed conditions was treated in service. For these reasons, the Board must find that the veteran's claims for service connection for a skin condition, kidney stones, kidney cancer with right nephrectomy, and prostate cancer with TUR, due to exposure to ionizing radiation during service, are not well grounded. 38 U.S.C.A. § 5107(a). ORDER The veteran's claim of entitlement to service connection for a skin condition due to exposure to ionizing radiation during service, being not well grounded, is denied. The veteran's claim of entitlement to service connection for kidney stones due to exposure to ionizing radiation during service, being not well grounded, is denied. The veteran's claim of entitlement to service connection for carcinoma of the right kidney with nephrectomy due to exposure to ionizing radiation during service, being not well grounded, is denied. The veteran's claim of entitlement to service connection for prostate cancer with TUR due to exposure to ionizing radiation during service, being not well grounded, is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals