14-24 924
14-24 924
| Board of Vet. App. | Apr 18, 2018Background
- Veteran served active duty Jan 1951–Dec 1954 and participated in Operation Castle (confirmed by service records), alleging radiation exposure during island blast recoveries.
- Claims filed for service connection for colon condition (claimed as tumors) and prostate cancer (claimed as tumors), asserted to be due to radiation exposure.
- RO decision in Sept 2012 denied claims; appeal to Board of Veterans' Appeals followed; Veteran withdrew request for a Board hearing.
- Board remanded in May 2017 for VA examinations and possible dose reconstruction if a radiogenic disease were found; VA scheduled exams in 2017 but the Veteran cancelled/did not attend and gave no good cause.
- Medical records do not establish prostate cancer or colon cancer: records show prostate nodule/elevated PSA and colitis; February 2004 and Sept 2006 records include “rule out cancer” but cancers were not diagnosed.
Issues
| Issue | Veteran's Argument | VA's Argument | Held |
|---|---|---|---|
| Service connection for colon condition (claimed tumors) including due to radiation | Colon condition is due to service radiation exposure (Operation Castle) | No current colon cancer diagnosis in record; Veteran did not attend VA exam; no probative medical nexus to service | Denied — preponderance of evidence against service connection |
| Service connection for prostate cancer (claimed tumors) including due to radiation | Prostate cancer result of radiation exposure in service | No current diagnosis of prostate cancer (only prostate nodule/elevated PSA and R/O cancer notes); Veteran failed to attend exam; no competent medical nexus evidence | Denied — preponderance of evidence against service connection |
Key Cases Cited
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence may establish diagnosis when competent or describing contemporaneous medical diagnosis)
- Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lay evidence can be competent to identify observable conditions)
- Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (direct service connection requires proof disease was incurred or aggravated in service)
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (VA must give due consideration to all pertinent medical and lay evidence)
- Morris v. Derwinski, 1 Vet. App. 260 (Vet. App. 1991) (duty to cooperate with VA in evidence gathering)