Back to BVA DecisionsGRANTEDService Branch ARMY Special Benefit NO SPECIAL BENEFIT Docket No. 17-31 339
ARTERIOSCLEROTIC HEART DISEASE (CORONARY ARTERY DISEASE)
ERIC S. LEBOFF · 2026 · Case ID: 26004999
Summary
The Veteran, who served in the Army from October 1958 to February 1962, appeals the denial of service connection for coronary artery disease (CAD), residuals of colon cancer, and diabetes mellitus type II (DM2). The Veteran asserts these conditions are due to in-service exposure to radioactive waste. The Board found that the Veteran's service treatment records did not confirm radiation exposure, but his separation examination and personnel records indicated duties involving radioactive waste and service as a seaman/boatswain. The agency of original jurisdiction (AOJ) conceded exposure to ionizing radiation and mustard gas. The Board is bound by this favorable concession, satisfying the in-service event element. The Veteran did not qualify for presumptive service connection under 38 C.F.R. § 3.309, and a VA Under Secretary for Health opinion found it "unlikely" that his colon cancer was caused by radiation, deeming this opinion speculative due to an unsupported dose estimate. The Board afforded this opinion no probative value. Negative VA medical opinions from November 2024 and August 2025 were found inadequate for failing to address positive evidence and comply with remand directives. The Board found more probative value in a March 2018 private medical opinion linking colon cancer to radiation exposure and a March 2025 opinion from Dr. Blevins, which directly linked the Veteran's colon cancer, CAD, cardiomyopathy, and DM2 to ionizing radiation exposure, supported by medical studies. The Board found the evidence to be in equipoise, resolving all doubt in the Veteran's favor. Service connection for CAD, colon cancer, and DM2 was granted.
Rationale
Current diagnosis of CAD confirmed by VA examination.; In-service event conceded by AOJ: exposure to ionizing radiation and mustard gas.; Private medical opinions and studies support causal link between radiation exposure and CAD.; Conflicting VA opinions found speculative or inadequate.
Full Decision Text
Citation Nr: 26004999 Decision Date: 04/28/26 Archive Date: 04/28/26 DOCKET NO. 17-31 339 DATE: April 28, 2026 ORDER Entitlement to service connection for coronary artery disease (CAD), status post myocardial infarction, is granted. Entitlement to service connection for residuals of colon cancer is granted. Entitlement to service connection for diabetes mellitus type II (DM2) is granted. FINDINGS OF FACT 1. The Veteran's CAD is related to exposure to radioactive waste during his period of active duty service. 2. The Veteran's colon cancer is related to exposure to radioactive waste during his period of active duty service. 3. The Veteran's DM2 is related to exposure to radioactive waste during his period of active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for CAD are met. 38?U.S.C. §§?1110, 1131, 5107; 38?C.F.R. §§?3.102, 3.303, 3.309, 3.311. 2. The criteria for service connection for colon cancer are met. 38?U.S.C. §§?1110, 1131, 5107; 38?C.F.R. §§?3.102, 3.303, 3.309, 3.311. 3. The criteria for service connection for DM2 are met. 38?U.S.C. §§?1110, 1131, 5107; 38?C.F.R. §§?3.102, 3.303, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1958 to February 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the agency of original?jurisdiction?(AOJ) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in February 2018. A transcript of the hearing is associated with the Veteran's claims folder. The?Veterans Law Judge?who conducted the February 2018 hearing?is no longer available to?participate?in the appeal. The?Veteran?was notified that the VLJ who conducted the hearing was not available to?participate?in?deciding?the claim. (3/4/2021, BVA Letter, p. 1). The?Veteran?was given the opportunity to request another optional Board hearing but did not respond to the notification letter.? This case was previously before the Board in October 2021, at which point the Board denied the Veteran's claims. The Veteran appealed the Board's October 2021 denial to the United States Court of Appeals for Veterans Claims (Court). In February 2023 the Court issued a joint motion for remand (JMR) setting aside the Board's October 2021 decision and remanding the issue for further proceedings. In remanding the claims, the Court found that the Board did not address whether the Veteran's CAD and DM2 are related to in-service exposure to ionizing radiation. Further, the Court noted a June 2021 VA medical opinion, wherein a VA examiner found that it is "possible" that the Veteran's claimed disabilities are related to exposure to lewisite but ultimately concluded that the claimed disabilities are "less likely" caused by lewisite exposure. The Court found that a medical opinion is needed to reconcile the findings made by the June 2021 VA examiner. The appeal returned to the Board in May 2023, at which point the claims were remanded to the AOJ for a medical opinion reconciling "the findings of the June 2021 VA medical opinion[] finding that 'while there is a possible connection' between the Veteran's exposure to lewisite and his colon cancer, diabetes, and coronary arteriosclerosis, it is 'less likely' that these conditions are caused by lewisite exposure during service." The requested medical opinions were proffered by a VA examiner in November 2024; however, in May 2025 the Board found that the November 2024 medical opinions did not "mention[] or attempt[] to reconcile the findings of the June 2021 VA medical opinions as directed by the prior remand." The Board therefore concluded that the AOJ failed to substantially comply with the May 2023 remand directives and remanded the claims to the AOJ for medical opinions discussing the June 2021 VA medical examiner's finding that "while there is a possible connection" between cancer, diabetes, and coronary arteriosclerosis, it is 'less likely' that these conditions are caused by lewisite exposure during service." The requested medical opinions were proffered by a VA examiner in November 2024; however, in May 2025 the Board found that the November 2024 medical opinions did not "mention[] or attempt[] to reconcile the findings of the June 2021 VA medical opinions as directed by the prior remand." The Board therefore concluded that the AOJ failed to substantially comply with the May 2023 remand directives and remanded the claims to the AOJ for medical opinions discussing the June 2021 VA medical examiner's finding that "while there is a possible connection" between the Veteran's exposure to lewisite and his claimed disabilities, it is "less likely" that these conditions are caused by lewisite exposure during service. In August 2025 the AOJ proffered the requested medical opinions; however, these opinions did not attempt to reconcile the findings of the June 2021 VA medical opinions as directed by the Court in the February 2023 JMR and the Board in the May 2023 and May 2025 decisions. 1. Entitlement to service connection for CAD. 2. Entitlement to service connection for residuals of colon cancer. 3. Entitlement to service connection for DM2. The Veteran asserts that he has current diagnoses of CAD, residuals of colon cancer, and DM2 that were caused by exposure to radioactive waste during his period of active duty service. (8/11/2014, Third Party Correspondence, p. 1). Service connection for a disability which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. ?See Ramey v. Brown,?9?Vet. App.?40, 44?(1996). First, service connection for diseases enumerated under?38 C.F.R. § 3.309(d)(3) may be presumed for veterans who engaged in a "radiation?risk activity." ?Id.? Second,?38 C.F.R. § 3.311(b)(2) provides a list of "radiogenic diseases" that may also be service connected if VA Undersecretary for Benefits determines that they are related to the claimed ionizing radiation exposure. ?Third, service connection can be established by showing that the disease was incurred or aggravated by service. ?Id. A "radiation-exposed veteran" is defined by?38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a?radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing?radiation?comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945, through July 1, 1946. 38 C.F.R. § 3.309(b)(i), (ii). The diseases that are presumptively related to?radiation?exposure under the provisions of?38 U.S.C. § 1112(c) and?38 C.F.R. § 3.309(d)(2) are: (i) leukemia (other than chronic lymphocytic leukemia); (ii) cancer of the thyroid; (iii) cancer of the breast; (iv) cancer of the pharynx; (v) cancer of the esophagus; (vi) cancer of the stomach; (vii) cancer of the small intestine; (viii) cancer of the pancreas; (ix) multiple myeloma; (x) lymphomas (except Hodgkin's disease); (xi) cancer of the bile ducts; (xii) cancer of the gall bladder; (xiii) primary liver cancer (except if cirrhosis or hepatitis B is indicated); (xiv) cancer of the salivary glands; (xv) cancer of the urinary tract; (xvi) bronchiolo-alveolar carcinoma; (xvii) cancer of the bone; (xviii) cancer of the brain; (xix) cancer of the colon; (xx) cancer of the lung; and (xxi) cancer of the ovary. If a claimant does not qualify as a (ix) multiple myeloma; (x) lymphomas (except Hodgkin's disease); (xi) cancer of the bile ducts; (xii) cancer of the gall bladder; (xiii) primary liver cancer (except if cirrhosis or hepatitis B is indicated); (xiv) cancer of the salivary glands; (xv) cancer of the urinary tract; (xvi) bronchiolo-alveolar carcinoma; (xvii) cancer of the bone; (xviii) cancer of the brain; (xix) cancer of the colon; (xx) cancer of the lung; and (xxi) cancer of the ovary. If a claimant does not qualify as a "radiation-exposed veteran" under?38 C.F.R. § 3.309(d)(3) and/or does not suffer from one of the presumptive conditions listed in?38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special development procedures provided in?38 C.F.R. § 3.311?if the veteran suffers from a radiogenic disease and claims exposure to ionizing?radiation?in service. ?Under?38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: (i) all forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) thyroid cancer; (iii) breast cancer; (iv) lung cancer; (v) bone cancer; (vi) liver cancer; (vii) skin cancer; (viii) esophageal cancer; (ix) stomach cancer; (x) colon cancer; (xi) pancreatic cancer; (xii) kidney cancer; (xiii) urinary bladder cancer; (xiv) salivary gland cancer; (xv) multiple myeloma; (xvi) posterior subcapsular cataracts; (xvii) non-malignant thyroid nodular disease; (xviii) ovarian cancer; (xix) parathyroid adenoma; (xx) tumors of the brain and central nervous system; (xxi) cancer of the rectum; (xxii) lymphomas other than Hodgkin's disease; (xxiii) prostate cancer; and (xxiv) any other cancer. ?38 C.F.R. § 3.311(b)(2). Under the special development procedures in 38?C.F.R. § 3.311(a), dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. ?38 C.F.R. § 3.311(a)(2). ?In all other claims,?38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the Veteran's exposure to?radiation. These records normally include but may not be limited to the Veteran's Record of Occupational Exposure to Ionizing?Radiation?(DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the Veteran's?radiation?dose in service. ?All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. ?38 C.F.R. § 3.311(a)(2)(iii). The Under Secretary for Benefits shall consider the claim and may request an advisory medical opinion from the Under Secretary for Health. ?38 C.F.R. § 3.311(c)(1). ?If after such consideration the Under Secretary for Benefits is convinced sound scientific and medical evidence supports the conclusion it is at least as likely as not the veteran's disease resulted from exposure to?radiation?in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction in writing. ?The Under Secretary for Benefits shall set forth the rationale for this conclusion, including an evaluation of the claim. ?38 C.F.R. § 3.311(c)(1)(i). ? If the Under Secretary for Benefits determines there is no reasonable possibility that the veteran's disease resulted from?radiation?exposure in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction in writing, setting forth the rationale for this conclusion. ?38 C.F.R. § 3.311(c)(1)(ii). 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. §? the rationale for this conclusion, including an evaluation of the claim. ?38 C.F.R. § 3.311(c)(1)(i). ? If the Under Secretary for Benefits determines there is no reasonable possibility that the veteran's disease resulted from?radiation?exposure in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction in writing, setting forth the rationale for this conclusion. ?38 C.F.R. § 3.311(c)(1)(ii). 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). The question for the Board is whether the Veteran's current disabilities began during service or is at least as likely as not related to an in-service injury, event, or disease.? The Board concludes that the Veteran has current diagnoses of CAD, residuals of colon cancer, and DM2 that were caused by exposure to radioactive waste during his period of active duty service. In the present case, the Veteran underwent a VA heart conditions examination in June 2021 that confirm current diagnoses of an old myocardial infarction, CAD, cardiomyopathy, and a coronary artery bypass graft. A June 2021 intestinal surgery examination confirmed a diagnosis of cecal carcinoma status post resection of the large intestine. Finally, a June 2021 diabetes mellitus examination confirmed a diagnosis of DM2. (6/16/2021, C&P Exam, p. 2). Accordingly, the Board finds that the first element of service connection is satisfied. With respect to the in-service event element, the Veteran asserts that he was exposed to radioactive waste during his period of active duty service. While his service treatment records do not confirm exposure to radioactive waste, the Veteran did report during his December 1961 separation examination that he handled radioactive waste while serving on an Army freight ship. (12/10/2014, STR, p. 59). Further, his service personnel record confirms that his principal duties included "seaman" and "boatswain." (12/10/2014, Military Personnel Record, p. 55-56). Based on these facts, the AOJ conceded that the Veteran was exposed to ionizing radiation and mustard gas during his period of active duty service. (10/4/2024, Other, p. 1). As the Board is bound by favorable findings made by the AOJ, the Board now finds that the Veteran was exposed to radiation and mustard gas during his period of military service. 38 C.F.R. § 20.801(a). Accordingly, the second element of service connection is satisfied. The Board will next consider whether a causal relationship exists between the Veteran's claimed disabilities and his conceded exposure to radiation. At the outset, the Board notes that the Veteran does not qualify as a "radiation-exposed veteran" under?38 C.F.R. § 3.309(d)(3) as he did not participate in one of the enumerated radiation-risk activities as defined in 38 C.F.R. § 3.309(b)(i), (ii). As such, he is not entitled to presumptive service connection under the provisions of 38 C.F.R. § 3.309. The Board additionally considered whether he is entitled to service connection under the special development procedures in 38?C.F.R. §?3.311(a). However, a dose estimate was not available for the Veteran. Despite the lack of a dose estimate, the VA Under Secretary for Health chose to assign the "full regulatorily allowed dose," or 5 rem per year, to the Veteran. Based on this dose estimate, the VA Under Secretary for Health determined that the probability of causation of the Veteran's exposure to ionizing radiation causing his colon cancer was 25.84 percent. The VA Under Secretary for Health thus concluded that it is "unlikely" that the Veteran's colon cancer was caused by radiation exposure during his period of active duty service. Based on the opinion provided by the VA Under Secretary for Health, the Director of Compensation Service concluded that there is no reasonable possibility that the Veteran's colon cancer can be attributed to ionizing radiation exposure during his period of active duty service. ( Under Secretary for Health chose to assign the "full regulatorily allowed dose," or 5 rem per year, to the Veteran. Based on this dose estimate, the VA Under Secretary for Health determined that the probability of causation of the Veteran's exposure to ionizing radiation causing his colon cancer was 25.84 percent. The VA Under Secretary for Health thus concluded that it is "unlikely" that the Veteran's colon cancer was caused by radiation exposure during his period of active duty service. Based on the opinion provided by the VA Under Secretary for Health, the Director of Compensation Service concluded that there is no reasonable possibility that the Veteran's colon cancer can be attributed to ionizing radiation exposure during his period of active duty service. (10/27/2020, VA Memo, p. 2, 5). Based on the findings by the Director of Compensation Service, the Board finds that entitlement to service connection under the provisions of 38?C.F.R. §?3.311(a) is not warranted. The Board will next consider whether service connection is warranted on a direct basis. To this point, the Veteran has provided several private medical opinions that link his claimed disabilities to exposure to radioactive waste during his period of active duty service. Specifically, in March 2018 the Veteran's private medical provider opined that there is a relationship between exposure to ionizing radiation and colorectal cancer. His private medical provider went on to note that the Veteran has no family history of colorectal cancer before concluding that "[w]ithin a reasonable degree of certainty . . . the [Veteran's] colon cancer was a result of his exposure to the ionizing radiation." (4/30/2018, Medical Treatment Record, p. 3, 5). The Veteran additionally submitted a private medical opinion from Dr. Blevins, a non-VA medical expert. Dr. Blevins opined that the Veteran's colon cancer, CAD, cardiomyopathy, and DM2 were directly caused by his exposure to ionizing radiation during his period of active duty service. In so finding, the examiner noted that the AOJ conceded that the Veteran was exposed to ionizing radiation. Dr. Blevins went on to note that it is well established that ionizing radiation causes cancer through direct DNA damage. Dr. Blevins further noted that studies have linked exposure to ionizing radiation to "solid cancers" such as cancers of the colon. Regarding cardiovascular disease, Dr. Blevins noted that studies have found an association between radiation exposure and most types of cardiovascular disease. Finally, regarding DM2, Dr. Blevins noted that studies have shown that the incidence of DM2 in atomic bomb survivors increased from 2.6 percent to 7.5 percent during a follow-up period of almost 30 years. (3/5/2025, Medical Treatment Record, p. 4-12). The Veteran has also submitted a number of medical studies that support a finding of causal relationships between his claim disabilities and exposure to ionizing radiation. Specifically, in March 2025 the Veteran submitted an article titled "Summary of Health Effects of Ionizing Radiation" that noted an "increased risk of developing either colon or rectal cancer after exposure to ionizing radiation." A second article, titled "Ionising radiation and cardiovascular disease: systematic review and meta-analysis," found that a causal association exists between radiation exposure and cardiovascular disease. Finally, an article titled "Ionizing Radiation Potentiates High-Fat Diet-Induced Insulin Resistance and Reprograms Skeletal Muscle and Adipose Progenitor Cells" found that exposure to ionizing radiation increases the risk of chronic metabolic disorders, including DM2. (3/5/2025, Correspondence, p. 79, 142, 158). The Board notes that there is conflicting evidence regarding whether the Veteran's claimed disabilities were caused by exposure to ionizing radiation. The evidence against the claim includes the aforementioned VA Under Secretary for Health opinion that found that it is "unlikely" that the Veteran's colon cancer was caused by radiation exposure during his period of active duty service. The Board finds that this opinion is speculative, as the opinion was predicated on a finding that the Veteran was exposed to 5 rem per year during his period of service. However, there is no evidence in the file regarding the degree of radiation the Veteran was exposed to. Indeed, the VA Under Secretary for Health acknowledges that a DD Form 1141, Record of Occupational Exposure to Ionizing Radiation, or its equivalent, was not of record. Despite this, the VA Under Secretary for Health assigned a dose value of 5 rem per year, based solely on the fact that 5 rem per year is the full regulatory allowed dose. There is no evidence of caused by radiation exposure during his period of active duty service. The Board finds that this opinion is speculative, as the opinion was predicated on a finding that the Veteran was exposed to 5 rem per year during his period of service. However, there is no evidence in the file regarding the degree of radiation the Veteran was exposed to. Indeed, the VA Under Secretary for Health acknowledges that a DD Form 1141, Record of Occupational Exposure to Ionizing Radiation, or its equivalent, was not of record. Despite this, the VA Under Secretary for Health assigned a dose value of 5 rem per year, based solely on the fact that 5 rem per year is the full regulatory allowed dose. There is no evidence of record supporting that the Veteran was in fact exposed to 5 rem per year. Indeed, he could very well have been exposed to far greater levels of radiation. Given the lack of evidence available supporting the VA Under Secretary for Health's finding that the Veteran was exposed to 5 rem per year, the Board finds that the opinion is speculative. The Board therefore affords the opinion no probative value. The record additionally includes November 2024 VA medical opinions wherein VA examiners opined that the Veteran's claimed disabilities were not related to radiation exposure. (11/18/2024, C&P Exam, p. 5). The Board finds that the November 2024 opinions are inadequate, as the opinions do not address the positive evidence of record, including the March 2018 opinion from the Veteran's private medical provider, Dr. Blevins' opinion, or the medical articles submitted by the Veteran. Further, in a May 2025 decision the Board found that these opinions were not responsive to the Board's previous remand directives. Likewise, in August 2025 a VA examiner found that the Veteran's claimed disabilities were not related to radiation exposure. (8/28/2025, C&P Exam, p. 15). While the August 2025 VA examiner did address Dr. Blevins' medical opinion, the examiner did not acknowledge or address the March 2018 opinion from the Veteran's private medical provider or the medical articles submitted by the Veteran. Further, as noted in the introduction section, the August 2025 medical opinions did not comply with the Board's previous remand directives. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for a medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the March 2018 and March 2025 medical opinions were provided by medical professionals who possess the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinions are shown to have been based on a review of the Veteran's record and are accompanied by a sufficient explanation as to how the Veteran's in-service exposure to radiation caused his current diagnoses of CAD, colon cancer, and DM2. Conversely, the negative VA opinions failed to address the positive evidence of record and did not substantially comply with the Board's remand directives. The Board thus places more probative weight on the March 2018 and March 2025 medical opinions. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's CAD, colon cancer, and DM2 were related to exposure to radiation during his period of active duty service.? Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for CAD, colon cancer, and DM2 is warranted. 38 U.S.C. §?5107; 38 C.F.R. § 3.102.? Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glenn, Robert The Board's decision in this case is binding only with respect to the instant matter decided Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's CAD, colon cancer, and DM2 were related to exposure to radiation during his period of active duty service.? Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for CAD, colon cancer, and DM2 is warranted. 38 U.S.C. §?5107; 38 C.F.R. § 3.102.? Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glenn, Robert The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.