Citation Nr: 0300774 Decision Date: 01/14/03 Archive Date: 01/28/03 DOCKET NO. 95-33 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stanley Grabia, Counsel INTRODUCTION The veteran served on active duty from September 1943 to January 1946. He is deceased, and the appellant is his surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from an April 1994 rating decision, in which the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO), denied the appellant's claim for service connection for the cause of the veteran's death. Subsequently in July 1997 and January 1999, the Board remanded this case for additional development and to obtain complete radiation exposure information for the veteran. The additional development has been completed and the case is ready for adjudication. A personal hearing was held at the RO in April 1995. A copy of the transcript is in the claims file. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the appellant in the development of her claim and has notified her of the information and evidence necessary to substantiate her claim. 2. The veteran died on March [redacted], 1993. According to the Certificate of Death, the immediate cause of the veteran's death was carcinoma of the brain with edema due to or as a consequence of metastatic carcinoma to the brain and lungs due to or as a consequence of transitional cell carcinoma of the left ureter. No other contributing causes were listed and no autopsy was performed. 3. Prior to his death, the veteran was service-connected for residuals of gunshot wounds (GSW), Muscle Group (MG) XXI, right with retained metal fragments, rated at 10%; and residuals GSW, MG III, right, rated as noncompensable. 4. The veteran's fatal metastatic carcinoma to the brain and lungs due to or as a consequence of transitional cell carcinoma of the left ureter was not manifested in service or in the first post-service year, and it is not shown to have been related to the veteran's active service. 5. The veteran was not exposed to ionizing radiation during service. 6. There is no causal relationship between the veteran's fatal metastatic carcinoma to the brain and lungs due to transitional cell carcinoma of the left ureter, first shown to be present many years after service and any incident of service, including claimed exposure to ionizing radiation. 7. A disability of service origin is not shown to have caused death or played any part in death. CONCLUSION OF LAW The veteran's death was not due to or the result of disease incurred in or aggravated by service, or which may be presumed to have been incurred in service, and a service-connected disability did not contribute substantially or materially to cause his death. 38 U.S.C.A. §§ 1110, 1310, 1312, 5103, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310, 3.311, 3.312 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board observes that VA has a duty to assist in the development of facts pertinent to the appellant's claim. On November 9, 2000, the Veterans Claims Assistance Act of 2000, 114 Stat. 2096 (2000) (VCAA), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2002), went into effect. VA has promulgated revised regulations to implement these changes in the law. 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). In this case, VA's duties have been fulfilled to the extent possible. VA must notify the appellant of evidence and information necessary to substantiate her claim and inform her whether she or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West Supp. 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appellant was notified of the information necessary to substantiate her claim and which information and evidence she was to provide to VA and which information and evidence VA would attempt to obtain on her behalf by means of letters in January 1995 and October 2002; the discussion in the April 1994 rating decision; by the Board Remands in July 1997 and January 1999; the May 1995 statement of the case; and October 1995, April 1998, July 1998, and June 2002 supplemental statements of the case. The Board notes that during the pendency of the veteran's appeal, the regulations listing the diseases subject to presumptive service connection was amended and added several new diseases specific to radiation-exposed veterans. The amendment was effective on March 26, 2002. The Court has held that "where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant generally applies." White v. Derwinski, 1 Vet. App. 519, 521 (1991). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). By letter dated in November 2002, VA informed the appellant of the aforementioned changes in the regulation specific to radiation-exposed veterans. A response was received later in November 2002 which indicated that all available evidence and argument had been submitted in support of the appellant's claim. VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West Supp. 2002); 38 C.F.R. § 3.159(c), (d). The duty to assist also includes obtaining records of relevant treatment at VA facilities, and any other relevant records held by any Federal department or agency identified by the appellant. If VA is unable to obtain records identified by the appellant, VA must notify her of the identity of the records that were not obtained, explain the efforts taken to obtain the records, and describe any further action to be taken. The Board finds that VA has met its duty to assist the appellant in the development of her claim under the VCAA. VA requested additional radiation data from the service Radiation and Dosimetry Center in January 1999 and December 1999, and from the Threat Reduction Agency in July 2000. There does not appear to be any outstanding service records that are relevant to this appeal. In addition, the appellant had the opportunity to testify before a hearing officer at the RO in April 1995. Thus, under the circumstances in this case, VA has satisfied its duties to notify and assist the appellant. As there is no indication that there are additional records that should or could be obtained, and it appears that all pertinent evidence is on file, no further development is indicated. Background. The appellant and her representative contend, in essence, that service connection should be granted for the cause of the veteran's death. The appellant has asserted her belief that the veteran's exposure to ionizing radiation in service caused the transitional cell carcinoma of the left ureter which metastasized to his brain and lungs and caused his death. Service records are silent as to any exposure to ionizing radiation in service or for complaints or treatment of transitional cell carcinoma of the left ureter in service. The service medical records reveal treatment for mortar fragment wounds in service on Okinawa in 1945. No treatment or diagnosis of any type of cancer disorder was noted during service. VA hospital records dated in July 1992 reflect that the veteran presented with a six month history of left flank pain and hematuria. It was determined that he had transitional cell carcinoma of the left kidney. He subsequently underwent chemotherapy treatment. In September 1992, the records noted that the cancer included renal/pelvis involvement and lung metastasis. In December 1992, it was noted that the veteran's cancer had metastasized to his brain in several places and it could not be resected. The veteran died at his home on March [redacted], 1993. The certificate of death lists the cause of death as carcinoma of the brain with edema due to or as a consequence of metastatic carcinoma to the brain and lungs due to or as a consequence of transitional cell carcinoma of the left ureter. No other contributing causes were listed and no autopsy was performed. By rating action in April 1994, service connection was denied for the cause of the veteran's death due to mustard gas exposure and due to radiation exposure. In making that determination the RO noted that the records did not reveal any exposure to mustard gas or to radiation exposure in service. The RO noted that metastatic carcinoma of the brain and lungs secondary to transitional cell carcinoma of the ureter was not shown by the medical evidence to have manifested within the first year after service. In addition it was not one of the recognized radiogenic diseases listed. In a personal hearing at the RO in April 1995 the appellant testified that she married the veteran after service in July 1946. He told her that he visited the two towns that had the atomic attacks. "He said that everything was dead, you know, the animals and things, and he said, the horses looked like they had been just fried, their hides had popped open, I mean bursted the skin on them, and their eyes was popped out of their heads....." He also told her they helped to clean up around Nagasaki. He told her he was sitting outside when the bomb went off, and they thought it was an earthquake. There was a big cloud they could see up in the sky. The appellant also indicated that she was informed by the veteran's doctor that he apparently also had shrapnel shown in his lung x- rays "where he had the largest cancer." He told her, "it was shrapnel that he got in service where the largest cancer growth." The Board in July 1997 denied service connection for the cause of the veteran's death due to mustard gas exposure as the disease causing the veteran's death was neither shown to be caused by mustard gas exposure nor was it shown to be incurred or aggravated in service. Regarding the claim for service connection for the cause of the veteran's death due to radiation exposure the Board remanded this claim to clarify the veteran's location during service. The Board noted that while NPRC accounted for the veteran's unit's whereabouts it did not address specifically the veteran's whereabouts. The RO was requested to ask whether the veteran was given any temporary assignments directing him to within 10 miles of the city limits of Nagasaki at any time from August 1945 to January 1946 or whether he was at any time stationed within 10 miles of the city limits of Hiroshima or Nagasaki, Japan. Subsequently additional records consisting of several morning reports were received from NPRC. None of theses records appear to have placed the veteran within 10 miles of Hiroshima or Nagasaki. The Board in January 1999 remanded the case to obtain the available dose assessments for the veteran from the Department of Defense in accordance with 38 C.F.R. § 3.311. A letter was sent to the Army Radiation Standards and Dosimetry Laboratory in December 1999. A January 2000 response indicated they had no records of exposure for the veteran. They however noted their records only went back to 1954. A letter was sent to the Defense Threat Reduction Agency in July 2000. In response a letter was received in October 2000. The response indicated that Army records did not place the veteran with the occupying forces in Hiroshima or Nagasaki. The available records placed him no closer than Yokohama, or approximately 400 miles from Hiroshima and 550 miles from Nagasaki. In November 2002 the Board notified the appellant of a change in the regulations specific to radiation exposed veterans. She was sent a copy of the amended regulations and given 60 days to review the changes and submit additional evidence or argument. The appellant in November 2002 requested the Board to proceed with the appeal. Law and Regulations. To be entitled to service connection for a disease or disability, the evidence must show that such disease or disability was either incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.306. Presumptive service connection may be granted for certain chronic diseases listed in 38 C.F.R. § 3.309(a), including cancer, although not otherwise established as incurred in service, if manifested to a compensable degree within the applicable time limits under 38 C.F.R. § 3.307 following 90 days continuous active service during a period of war or following peacetime service on or after January 1, 1947, provided the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137. The surviving spouse of a veteran who has died from a service-connected disability or compensable disability may be entitled to receive dependency and indemnity compensation. 38 U.S.C.A. § 1310. In order to establish service connection for the cause of the veteran's death, the evidence must show that a service- connected disability was either the principal or a contributory cause of death. The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death is inherently one not related to the principal cause. In determining whether the service- connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service- connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312. Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209 (1997); Rucker v. Brown, 10 Vet. App. 67 (1997). There are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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 U.S. forces during the period beginning 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 U.S. occupation 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). Diseases specific to radiation-exposed veterans are as follows: (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 gland; (xv) cancer of the urinary tract; (xvi) bronchiolo-alveolar carcinoma. 38 C.F.R. § 3.309(d)(2). As previously noted as of March 26, 2002, (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 were added to the list. (See 67 Fed. Reg. 3612-3616 (Jan. 25, 2002)). 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation, and does not refer to any other types of radiation exposure. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. Dose data is requested from the Department of Defense in claims based on participation in atmospheric nuclear testing, and claims based on participation in the U.S. occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2) (2002). In all other claims involving radiation exposure, a request will 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). Pursuant to 38 C.F.R. § 3.311, "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes the following: thyroid cancer, breast cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2)(i). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2002). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App.49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The benefit-of-the-doubt rule does not apply when the Board has found that a preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Analysis. Initially, the Board finds that VA has complied with all of the applicable provisions of 38 C.F.R. § 3.311. As outlined above, in order to establish service connection for the cause of the veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The service medical records do not contain findings indicative of cancer, including transitional cell carcinoma of the left ureter. Post service medical evidence are silent until 1992 when the veteran first presented with left flank pain and hematuria. There are several types of radiation-related cancer which are presumptively service connected under 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d); see also 38 C.F.R. § 3.311. Cancers of the brain, lung and urinary tract are among those cancers. However, this presumption may be rebutted if competent medical evidence indicates to the contrary. Id.; 38 C.F.R. § 3.307(d). The Board has reviewed the record, which clearly establishes that the veteran had transitional cancer of the ureter which metastasized to the lungs and brain and that brain cancer and edema was the disease which produced his death. However, the record further reveals that transitional cell carcinoma of the left ureter was not manifested until about 46 years after the veteran's separation from service, and no medical evidence is of record relating the cancer to the veteran's military service. Accordingly, there is no basis for a grant of service connection for the veteran's fatal transitional cell carcinoma of the left ureter on a direct basis as the disease did not have its onset during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Further, there is no basis for a grant of service connection for the veteran's fatal transitional cell carcinoma of the left ureter on the grounds that the fatal carcinoma was manifested to a compensable degree within one year after his separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Moreover, the evidence does not show that the veteran participated in a "radiation-risk activity" as defined by applicable regulations pertaining to diseases subject to presumptive service connection in a radiation-exposed veteran. As previously stated, a "radiation risk activity," means, as herein pertinent, the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946. 38 U.S.C.A. § 1112(c)(3)(A); 38 C.F.R. § 3.309(d)(3)(ii). In turn, the term "occupation of Hiroshima or Nagasaki, Japan, by United States forces" means official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan, which were required to perform or support military occupation functions such as occupation of territory, control of the population, stabilization of the government, demilitarization of the Japanese military, rehabilitation of the infrastructure or deactivation and conversion of war plants or materials. 38 C.F.R. § 3.309(d)(3)(vi). The Board notes that lung cancer and brain cancer were not diseases listed as subject to presumptive service connection in a radiation-exposed veteran when the RO entered its April 1994 decision denying service connection for the cause of the veteran's death. However, as noted they were added to the list of diseases subject to presumptive service connection specific to radiation- exposed veterans effective March 26, 2002. See 38 C.F.R. § 3.309(d)(2)(xviii)(xviii). When a law or regulation changes during the course of an appeal, the version of the law or regulation most favorable to the appellant generally applies. Karnas, supra. The revised regulation is more favorable to the appellant and will be applied in the disposition of the claims on appeal. However, although brain and lung cancer are now among the diseases for which presumptive service connection is available for radiation-exposed veterans, the evidence establishes that the veteran was not a radiation-exposed veteran, as defined by pertinent governing criteria. Thus, the veteran's fatal metastatic brain and lung cancers cannot be presumptively service-connected under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Service connection also may be established for disabilities deemed as potentially "radiogenic" diseases pursuant to 38 C.F.R. § 3.311. In this regard, the Board observes that, under this section, radiation exposure is conceded where military records do not establish the veteran's presence or absence from a site at which exposure to radiation is claimed to have occurred. See 38 C.F.R. § 3.311(a)(4)(i). Brain and lung cancers are considered to be a potentially radiogenic disease pursuant to 38 C.F.R. § 3.311. However, the demonstration of a potentially radiogenic disease and exposure to ionizing radiation during service does not necessarily establish entitlement to service connection. All relevant factors, including the amount of radiation exposure, must be considered in determining whether the record supports the contended etiologic relationship. This appeal turns on whether the evidence supports the appellant's contention that the veteran's fatal metastatic brain and lung cancer was a "radiogenic" disease, i.e., that brain and lung cancer developed as a result of claimed in-service exposure to ionizing radiation. Here, the appellant contends that the veteran was exposed to ionizing radiation when his unit was stationed in the immediate vicinity of Hiroshima and Nagasaki, Japan, shortly after the atomic bomb was dropped. During his lifetime, the veteran reported that he helped clean up Nagasaki. He also reported sitting outside when the bomb went off. There was a big cloud they could see that way up in the sky. However, the objective evidence does not substantiate the claimed proximity to Nagasaki (or for that matter, to Hiroshima, the other Japanese City on which an atomic bomb was dropped). In this regard, the Defense Threat Reduction Agency has determined that the veteran was never stationed closer than 550 miles from Nagasaki and 400 miles from Hiroshima during service. Thus, the record verifies the veteran's absence from a site at which exposure to radiation is claimed to have occurred. The evidence does not establish that the veteran was exposed to ionizing radiation in service. Accordingly, further development under 38 C.F.R. § 3.311 is not warranted, and the appellant's claim for service connection for the cause of the veteran's death, based on fatal brain and lung cancer stemming from reported in- service exposure to radiation, must be denied. An in-service disease or injury is one of the elements required to prevail in a claim for service connection for disability. In this case, radiation exposure is the claimed in-service disease or injury. Here, the evidence demonstrates that the veteran was not exposed to radiation during service. For the foregoing reasons, the claim for service connection the cause of the veteran's death is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. 5107(b) (West 1991 and Supp. 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). ORDER Service connection for the cause of the veteran's death is denied. Gary L. Gick Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.