The opinion
HOLDAWAY, Judge,
dissenting:
I disagree with the way the majority rewrites the language of 38 C.F.R. § 3.311 (e)(ii). The majority opinion holds that the Under Secretary for Benefits must address all of the subsection (e) factors in every expert opinion rendered. However, as the majority concedes, the express language of the regulation requires the Under Secretary to “includ[e] an evaluation of the claim under the applicable factors specified in paragraph (e) of this section” only if “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.” 38 C.F.R. § 3.311 (c)(l)(i). In striking contrast, if the Under Secretary “determines there is no reasonable possibility that the veteran’s disease resulted from radiation exposure in service,” then subsection 3.311(c)(l)(ii) requires only that the Under Secretary “set[] forth the rationale for this conclusion.”
The absence of a requirement that the Under Secretary address all of the subsection (e) factors in writing cannot be construed as accidental. The Secretary clearly knew how to include such a requirement expressly, but did not. See 38 C.F.R. § 3.311 (c)(l)(i); see also 38 C.F.R. § 3.311 (d)(3) (outside consultants required to provide written evaluation of all factors outlined in (e), regardless of conclusion). Furthermore, the regulation does not require or imply a need for all factors to be explicitly reviewed in writing in order for the regulation to function logically. In some eases it would be unnecessary to analyze all of the factors when the expert found that some of the factors were dispositive. This case is a prime example. The combination of probable dose received, 38 C.F.R. § 3.311 (e)(1), the nature of the cancer involved, 38 C.F.R. § 3.311 (e)(2), and the appellant’s age, 38 C.F.R. § 3.311 (e)(4), were sufficient, according to Dr. Mather, to rule out any reasonable possibility that the veteran’s cancer was related to service exposure. See R. at 134. Therefore, it appears from the language of Dr. Mather’s expert report that no other *301 factors could have significantly impacted the probability that the appellant’s condition was caused by in-service exposure. In other words, the cited factors were so conclusive that they essentially mooted the factors not expressly mentioned in writing. Consequently, this case demonstrates that there is a rational reason why the Secretary promulgated section 3.311 in a way that it distinguishes between cases where every factor is relevant (when the Under Secretary finds that the total circumstances indicate that the appellant’s disease was caused by service) and cases where fewer than all factors may be conclusive (when the Under Secretary finds no nexus to service).
The majority suggests that if the Court were to read section 3.311(c)(ii) to mean only what it says, then the Court would have to set it aside as contrary to section 5(b)(2)(A)(iii) of Public Law 98-542. That law directed the Secretary to promulgate regulations “specifying the factors to be considered in adjudicating issues related to whether or not service connection should be granted” based on a disease allegedly caused by in-service exposure to ionizing radiation. Id. The majority argues that the Under Secretary’s failure to provide a written discussion of all of the factors would impermis-sibly frustrate the Board’s ability to provide adequate reasons and bases for a decision which relies on the Under Secretary’s expert opinion.
The majority’s conclusion is a non sequitur for at least two reasons. First, the fact that the Under Secretary’s expert opinion does not address all of the subsection (e) factors in writing does not mean that the BYA cannot fully evaluate the weight of the expert opinion in the context of a given ease. In other words, the reasons and bases requirement is a duty imposed on the BVA, not on expert witnesses, and compliance with that requirement turns on the quality and accuracy of the BVA’s analysis.
Second, Public Law 98-542, § 5 (b)(2)(A)(iii) does not contain a requirement that the Board must analyze all factors listed in the Secretary’s regulations in order to satisfy the reasons and bases requirement. That section merely requires the Secretary to promulgate regulations which specify the “factors to be considered in adjudicating issues relating to whether or not service connection should be granted in individual cases.” Id. (emphasis added). This language does not require the Secretary to establish a single set of factors which must be considered in every radiation case, much less a set of factors which must be discussed individually in writing. To the contrary, the law gives the Secretary a broadly stated charge to construct rules which govern whether to grant service connection. That requirement squares easily with the current regulation which states that under certain conditions all factors must be discussed in writing, but in other circumstances they need not be. See discussion supra. Thus, the majority opinion misreads the public law, indeed, rewrites it by adding a requirement that all factors promulgated by regulation must be discussed in every section 3.311(c) case. The majority then relies on this fictional requirement to argue that the regulation must include the same in order to comply with the public law. Consequently, the majority’s conclusion, to the effect that the obvious difference in language between section 3.311(c)(i) and 3.311(e)(ii) is nothing more than cosmetic, is without legal basis. Furthermore, because there is no ambiguity in the language of the regulation or statute, and because the regulation is logical as written, there is no need for the Court to modify a rationally based regulation — even if it were inclined to do so.
In this case, the BYA justifiably found that the only evidence of record was contrary to the proposition that the veteran’s disease was caused by in-service exposure, and it articulated such finding with adequate analysis. Thus, the BVA clearly had a plausible basis for its conclusion that the appellant had failed to provide evidence of a nexus between the veteran’s disease and the veteran’s service, and it gave adequate reasons and bases for its decision. Therefore, the Board was fully capable of complying with its duty to provide adequate reasons and bases without the existence of an expert opinion from the Under Secretary which discussed in writing all of the subsection (e) factors. I would *302 affirm the Board’s denial of the claim based on its finding that there was no evidence that in-service exposure to ionizing radiation caused the veteran’s disease.