PROSTATE CANCER

Summary

The Veteran, an Army photo lab specialist who served from June 1976 to June 1980, appeals the denial of service connection for prostate cancer. The Veteran initially claimed the cancer was due to in-service exposure to ionizing radiation, citing presumptive links and the PACT Act's inclusion of Enewetak Atoll cleanup. However, VA research found no records of radiation exposure for the Veteran, and at a Board hearing, the Veteran shifted focus to potential chemical exposure near Aberdeen, Maryland, citing articles about chemical warfare research experiments. The Board noted the program was suspended before the Veteran's service and that the Veteran only asserted exposure as a possibility. The Veteran's service treatment records were silent regarding prostate cancer, and the diagnosis occurred 37 years post-service with no continuity of symptoms. The Board found no evidence of in-service incurrence, aggravation, or a causal relationship to service, nor did it find the evidence in approximate balance to apply the benefit of the doubt. The Board also noted the absence of a VA examination, but deemed it unnecessary due to the lack of competent evidence supporting a service connection. Consequently, service connection for prostate cancer was denied.

Rationale

No evidence of in-service incurrence or aggravation of prostate cancer.; Prostate cancer diagnosed 37 years post-service with no continuity of symptoms.; No evidence of in-service exposure to ionizing radiation or chemicals.; No evidence of radiogenic disease or exposure to ionizing radiation.; Veteran's claims of chemical exposure were not substantiated.

Full Decision Text

Citation Nr: A26023383
Decision Date: 03/16/26	Archive Date: 03/16/26

DOCKET NO. 210519-160523
DATE: March 16, 2026

ORDER

Entitlement to service connection for prostate cancer is denied.

FINDING OF FACT

The Veteran's prostate cancer first developed many years after discharge from service, and it is not etiologically related to service, including claimed ionizing radiation and chemical exposures.

CONCLUSION OF LAW

The criteria for entitlement to service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served active duty in the United States Army from June 1976 to June 1980.

This matter comes before the Board of Veterans' Appeals (Board) from a November 2020 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran disagreed with the decision by submitting a VA Form 10182 and electing a hearing before a Veterans Law Judge under the Appeals Modernization Act (AMA) system.  A hearing was held in February 2024, and the transcript is of record. 

The Board may only consider the evidence of record before the Agency of Original Jurisdiction (AOJ) at the time of its decision on the issue on appeal, evidence submitted by the appellant or his or her representative at the Board hearing, to include testimony provided at the hearing; and evidence submitted within 90 days following the Board hearing.  38 C.F.R. § 20.300(a), 302(a).  If additional evidence was submitted between the dates of the AOJ decision and the hearing, the Board will not consider it unless it is resubmitted during the 90 days following each of these actions.  If evidence is not resubmitted, the appellant is welcome to file a supplemental claim to have this evidence considered.  Id.; Cook v. McDonough, 36 Vet. App. 175 (2023).

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in three different ways. Davis v. Brown, 10 Vet. App. 209, 211 (1997).

First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d).

Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease.

Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation but must also determine whether the disability was otherwise the result of active service.

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
d 1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation but must also determine whether the disability was otherwise the result of active service.

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).

On August 10, 2022, the President of the United States signed into law the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act. Pub. L. No. 117-168 § 3373, 136 Stat. 1759 (2022). A notable element of the PACT Act is that it establishes a new provision adding "Cleanup of Enewetak Atoll during the period beginning on January 1, 1977, and ending on December 31, 1980" to the definition of "radiation -risk activity." In-service radiation exposure is a newly added presumptive situation for Veterans who participated in the clean-up activities of Enewetak Atoll during the stated period.

Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 U.S.C. § 1112(c)(2); 38 C.F.R. § 3.309(d).

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 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
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). Section 3.311(b)(5) requires that prostate cancer and skin cancer become manifest 5 years or more after exposure. 38 C.F.R. § 3.311(b)(5).

Under the special development procedures that are contained within § 3.311(a), dose data will be requested from the Department of Defense in claims based upon the Veteran's 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 preparing a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii).

When the evidence is evenly balanced or approximately so with regard to whether service connection is warranted, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). To deny a claim on its merits, the evidence must persuasively weigh against the claim. Id.) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

The Veteran's military occupational specialty for the majority of his active duty service was a photo lab specialist.  Exposure to ionizing radiation has not been conceded by VA.  Nevertheless, the Veteran contends that his prostate cancer is due to in-service exposure to ionizing radiation.

In the November 2020 decision, the RO conceded a current diagnosis of prostate cancer and found that, generally, prostate cancer has been presumptively linked to ionizing radiation exposure. Under the AMA, the Board is bound by the AOJ's favorable findings. 38 C.F.R. §3.104(c).  

The Veteran's service treatment records are silent for any complaints or treatment for prostate cancer.  Following service, his prostate cancer was first diagnosed in 2017, which was 37 years post-service.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim).

There is no evidence in this case, nor does the Veteran contend that prostate cancer had its onset during his period of active service.  Nor is there evidence to suggest the presence of prostate cancer until many years after the Veteran's service, and thus, there is no indication of continuity of symptoms since service or that the Veteran's prostate cancer manifested to a compensable degree within one year of his separation from military service in 1980.  Accordingly, service connection for prostate cancer cannot be granted on a direct basis based on in-service incurrence or on a presumptive basis for chronic diseases.

Instead, the Veteran asserts that his prostate cancer is related to his claimed in-service exposure to ionizing radiation.  Nevertheless, there is no evidence of record to show the Veteran was exposed to ionizing radiation in service.  Indeed, there is evidence of the contrary.  In a March 2020 request for evidence of exposure to radiation while performing military duties, VA provided the Army Dosimetry Center with the Veteran's name, social security number, unit, dates of activity duty, duty
 manifested to a compensable degree within one year of his separation from military service in 1980.  Accordingly, service connection for prostate cancer cannot be granted on a direct basis based on in-service incurrence or on a presumptive basis for chronic diseases.

Instead, the Veteran asserts that his prostate cancer is related to his claimed in-service exposure to ionizing radiation.  Nevertheless, there is no evidence of record to show the Veteran was exposed to ionizing radiation in service.  Indeed, there is evidence of the contrary.  In a March 2020 request for evidence of exposure to radiation while performing military duties, VA provided the Army Dosimetry Center with the Veteran's name, social security number, unit, dates of activity duty, duty description, diagnosed disability, and other identifying information.  An April 2020 response received from the Department of the Army indicated that files had been researched for records of exposure to ionizing radiation for the Veteran and they were unable to locate any records for him. Notably, during the February 2024 Board hearing, the Veteran and his representative indicated that they no longer believed his prostate cancer was due to radiation exposure while in service but rather to chemical exposure from a nearby plant.

During the February 2024 hearing, the Veteran testified that he was stationed in Aberdeen, Maryland.  He testified that there was a chemical plant near the military facility, and he believed he was exposed to lawn chemicals and fumes from the smokestack. He also testified that, while the plant was not a part of the military installation, it was nearby.  He stated that he also observed smokestacks and fumes that came from the plant, and as a photographer, he would photograph the training which included gas or smoke being sent through cans into the air. 

In February 2024, the Veteran submitted articles regarding Army human experimentation during chemical warfare research in Maryland.  A secondary article reveals that roughly 7,000 soldiers took part in the experiment and were exposed to over 250 diverse types of chemicals.  The article indicated that volunteers were used.  

The Veteran has not asserted that he was a volunteer for chemical warfare research.   Moreover, the articles show the program was suspended in 1975, which is before the Veteran's active duty military service. At the hearing, the Veteran asserted that it was merely a possibility that he was exposed to chemicals.

In light of the foregoing, the Board finds that the evidence is not in approximate balance that the Veteran was exposed to ionizing radiation or chemicals in service.  Additionally, as noted above, the Veteran's service treatment records are silent as to any complaints, treatment, or diagnoses related to prostate cancer.  The Board also notes that the Veteran is not competent to create a nexus between his currently diagnosed prostate cancer and service or any alleged event of service, to include claimed exposure to radiation in service.  

In making this finding, the Board acknowledges that the Veteran has not been afforded a VA examination for his claimed condition. However, in the absence of competent evidence indicating that the Veteran has in-service incurrence or aggravation of a disease or injury; or a causal relationship between the present disability and the disease or injury incurred or aggravated during service, no VA examination is required. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).  At that time of the decision on appeal, the Veteran had not raised any other contentions regarding the onset of his condition or how it is directly related to his military service besides ionizing radiation exposure.  

Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance.  Therefore, entitlement to service connection for prostate cancer is not warranted. 38 U.S.C. § 5107(b); Lynch, 21 F.4th 776.

 

 

Ann K. Minami

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. M. Walker

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.