BVA9505594 DOCKET NO. 93-08 855 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUES 1. Entitlement to service connection for colon cancer due to exposure to ionizing radiation. 2. Entitlement to service connection for a tremor disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD P. J. McCarty, Associate Counsel INTRODUCTION The veteran had active service from July 1942 to May 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1992 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Francisco, California. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his colon cancer is due to exposure to ionizing radiation during his service in Japan during World War II. He also contends that his tremor disability worsened in severity during his service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claims of entitlement to service connection for colon cancer and a tremor disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran's colon cancer was not shown in service, within one year after discharge, nor is it shown to be related to the ionizing radiation to which he was exposed during service. 3. The veteran's tremor disability pre-existed his service, and was not shown to have worsened in severity during service. CONCLUSIONS OF LAW 1. Colon cancer was not incurred in or aggravated by service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (1994). 2. The preexisting tremor disability was not aggravated by service. 38 U.S.C.A. §§ 1110, 1111(West 1991); 38 C.F.R. §§ 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that it has found the veteran's claims to be well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), in that his claims are plausible. Further, the Board is satisfied that all relevant facts have been properly developed and that no further assistance is required to comply with 38 U.S.C.A. § 5107(a). The veteran is claiming entitlement to service connection for colon cancer as a residual of exposure to ionizing radiation in service. The evidence of record includes the veteran's service medical records, private hospital records, radiation dose information from the Defense Nuclear Agency (DNA), and memoranda from the VA Assistant Chief Medical Director and the Director, VA Compensation and Pension Service. The veteran's service medical records do not show, nor does the veteran contend, that there was complaint, treatment or finding indicating the presence of colon cancer in service. Records from the Sutter Community Hospitals, dated in January and February 1983, show that the veteran was diagnosed as having colon cancer at that time. Under the provisions of 38 C.F.R. § 3.303 (d), service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. However, the preponderance of the evidence is against a grant of service connection for colon cancer under this regulation. There was no indication of colon cancer in service, and, there is no medical opinion or other evidence linking the veteran's colon cancer to service. A grant of presumptive service connection for colon cancer is likewise precluded under 38 C.F.R. §§ 3.307, 3.309(a) because the cancer was not manifested to a compensable degree within one year after service. The veteran contends that the his colon cancer was caused by his exposure to ionizing radiation during service; he reported that he participated in the occupation of Japan in 1945. Colon cancer is not among the diseases subject to presumptive service connection on a radiation basis under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Colon cancer is, however, a potentially "radiogenic" disease under 38 C.F.R. § 3.311. However, the demonstration of a potentially radiogenic disease and exposure to ionizing radiation during service does not in and of itself establish entitlement to service connection. The Board must consider all relevant factors, including the amount of radiation exposure, in determining whether the record supports the contended etiologic relationship. In its January 1992 response to a request from the RO for information pertaining to the veteran, including a radiation dose estimate, DNA confirmed the veteran's presence in the Hiroshima area during the American occupation of Japan. Specifically, while attached to Headquarters and Service Company, 1874th Engineer Aviation Battalion, the veteran arrived at Kure, Honshu, Japan (approximately nine miles southeast of Hiroshima) on October 27, 1945. It is known that his battalion was active in Hiroshima itself during October and November 1945. Rehabilitation of the Hiroshima airstrip was one of his units assigned missions. Available morning reports indicate that the veteran remained at Kure until January 16, 1946, at which time he was transferred to the 11th Replacement Depot at Okazaki for transportation back to the United States. DNA also reported that a scientific dose reconstruction titled Radiation Dose Reconstruction: U.S. Occupation Forces in Hiroshima and Nagasaki, Japan, 1945-1946 (DNA 5512F) determined that the maximum possible radiation dose that might have been received by any individual who was either at Hiroshima or Nagasaki for the full duration of the American Occupation (September 1945 to June 1946 for Nagasaki; and September 1945 to March 1946 for Hiroshima). Using all possible "worst case" assumptions, the maximum possible dose any individual serviceman might have received from external radiation, inhalation, and ingestion is less than one rem. DNA noted that this does not mean that any individual approached that level of exposure. In fact, it is probable that the great majority of servicemen assigned to the Hiroshima and Nagasaki occupation received no radiation exposure whatsoever, and that the highest dose received by anyone was a few tens of millirem. In a March 1992 memorandum, the VA Assistant Chief Medical Director for Environmental Medicine and Public Health responded to a request for review of the veteran's record. She noted that the veteran was reported to have received a maximum dose of 1.0 rem irradiation at age 28. Citing CIRRPC Scientific Panel Report No. 6 (1988), she stated that it was calculated that exposure to 29.9 rad or less at age 28 provides a 99 percent credibility that there is no reasonable possibility that it is as least likely as not that the veteran's colon cancer is related to his exposure to ionizing radiation. She also cited Health Effects of Exposure to Low Levels of Ionizing Radiation (BEIR V), 301-303 (1990), commenting that information in BEIR V generally confirmed her statement. She noted that among Japanese A-bomb survivors no excess of colon cancer has been "evident at doses below 1.0 Gy", i.e. 100 rads, and risks have been increased only after "intense irradiation." She further noted that the veteran's dose was much lower than the cited value (29.9 rad) and concluded that it was highly unlikely that the veteran's disease could be attributed to exposure to ionizing radiation in service. In a March 1992 Advisory Opinion, the VA Compensation and Pension Service Director agreed with the medical opinion from the Assistant Chief Medical Director. The Compensation and Pension Director stated that as a result of the medical opinion, and following review of the evidence in its entirety, it was his opinion that there is no reasonable possibility that the veteran's disability was the result of his exposure to radiation in service. Following review of the record, it is the Board's judgment that the preponderance of the evidence is against the veteran's claim for service connection for colon cancer as a residual of radiation exposure in service. In support of this conclusion, the Board notes that the radiation dose reconstruction shows that the upper bound of exposure for the veteran was less than 1.0 rem. There is no medical opinion of record linking the veteran's radiation exposure to the development of colon cancer. On the other hand, the opinion of the VA Assistant Chief Medical Director, which is based on a quantitative analysis, is clearly against the veteran's claim. As it specifically considers the reconstructed dose estimate for the veteran and the quantitative analyses in recent scientific studies, the Board has given great weight to this well-reasoned medical opinion. For the foregoing reasons, the Board concludes that service connection for colon cancer is not warranted. The veteran also claims that service connection is warranted for a tremor disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. A veteran is presumed in sound condition except as to defects noted when examined or accepted for service, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance into service and was not aggravated by service. 38 U.S.C.A. § 1111. The veteran's service medical records reveal that at a pre- induction examination in March 1942, a tremor was noted and it was indicated that the veteran had been rejected by the United States Navy on two previous occasions. Physical examinations in July and October 1942 reveal that the veteran's nervous system was noted as normal. The veteran was not treated for the tremor during service. His separation examination report noted a nervous tic, asymptomatic, which was found to have pre-existed service. An enlistment examination for extended service, dated in September 1950, noted that the veteran had marked palsy of the head and neck muscles and slight tremor of the hands. The diagnostic impression was Parkinson-type cerebral palsy. The veteran submitted a letter from Robin D. Fross, M.D., dated in April 1991, in which Dr. Fross indicates that she recalled that the veteran's head tremor appeared within a short time after the traumatic events that the veteran experienced while stationed in Japan. Although Dr. Fross's letter does not give an approximate date when the veteran's head tremor appeared, she does not indicate that his tremor disability worsened in severity during his period of service. Other post-service medical evidence from Bertram Feinstein, M.D., and Howard V. Petzold, M.D., dated in 1966 and 1967, establish that the veteran reported a history of tremor of the hands since his early childhood, extending to involvement of the head in recent years. He also reported that his father and his two sons also suffered from the disability. Diagnosis was made of benign heredital-familial tremor. None of this evidence tends to establish that the veteran's tremor disability worsened in severity during his service. The veteran is not entitled to the presumption of soundness as his condition was noted at entrance into service, and his separation examination along with post-service medical records demonstrate that the veteran has a benign heredital-familial tremor which pre-existed his service. Further, the Board notes that none of the evidence of record indicates that the veteran's tremor disability worsened in severity during his service. In light of the foregoing, the Board finds that service connection for the veteran's tremor disability is not warranted. ORDER Service connection for colon cancer due to exposure to ionizing radiation is denied. Service connection for a tremor disability is denied. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.