Citation Nr: 0502639 Decision Date: 02/03/05 Archive Date: 02/15/05 DOCKET NO. 00-14 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: South Dakota Division of Veterans Affairs ATTORNEY FOR THE BOARD Patricia Olson, Associate Counsel INTRODUCTION The veteran had active military service from October 1948 to June 1952 and from July 1954 to August 1978. This matter is before the Board of Veterans' Appeals (Board) following Board Remands of May 2001 and August 2003. This matter was originally on appeal from an April 2000 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Sioux Falls, South Dakota. FINDINGS OF FACT 1. During his lifetime, the veteran was service-connected for bilateral hearing loss; this condition played no role in his death. 2. During service the veteran did not participate in a radiation-risk activity. Actual radiation exposure in service is not shown. 3. The veteran died due to acute myeloid leukemia which began decades after service, and this fatal condition was not caused by any incident of service. CONCLUSION OF LAW The veteran's fatal acute myeloid leukemia was non-service- connected, and a service-connected disability did not cause or contribute to his death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION As set forth above, this matter was remanded by the Board in May 2001 for the further development. Essentially, the RO was instructed to address the appeal as a claim for service connection for the cause of the veteran's death as residual to ionizing and non-ionizing (microwave) occupational radiation exposure during active service, to include exposure to electromagnetic field [EMF] waves; attempt to obtain copies of all the veteran's medical records from Ellsworth AFB Hospital, Rapid City Regional Hospital and from the VAMC, Hot Springs; take all necessary action to obtain the veteran's post-1070 service personnel records and DD Form 1141 from NPRC using both the veteran's service number and his Social Security number; write to each unit in which the veteran served since 1948 and obtain copies of all records or reports of occupational radiation exposure monitoring accomplished by each unit during the periods in which the veteran was assigned to that unit, including instrument shops; request that the Chief, USAF Center for Radiation Dosimetry, provide copies of all records in the possession of that activity which bear upon occupational radiation exposure monitoring in the above-cited units at the time the veteran was assigned to those units, including ionizing and non-ionizing radiation and EMF waves; request that the Chief, USAF Center for Radiation Dosimetry, be asked to identify by name, date and source any published or unpublished military or non-military studies, reports or other documents which address occupational radiation exposure of the type described in the specific units, or type of units, in which the veteran served while on active duty; request that the Department of the Air Force identify any published or internal studies, reports or other documents which address occupational radiation exposure of the type described in the units in which the veteran served while on active duty; request that the Department of the Air Force provide copies of all reports, studies or records of occupational radiation exposure monitoring on the worksite during the period in which the veteran served as NCO in Charge of the Instrument Shop from 1966 to July 1969 and as Senior Master Sergeant serving as Automatic Flight Control/Avionic Instrument Superintendent from 1973 to 1978; and inform the appellant of her right to submit additional evidence and argument. After the above development was completed, the RO was instructed to comply with all procedural requirements set out in 38 C.F.R. § 3.311 with respect to obtaining a dose estimate and medical opinion; obtain a review of all medical and radiation exposure evidence from a qualified fee-basis or VA oncology specialist and an opinion as to whether it was at least as likely as not that the veteran's exposure to ionizing and non-ionizing (microwave) radiation and EMF waves while on active duty caused or contributed substantially or materially to the fatal acute myogenous leukemia that caused the veteran's death; readjudicate the issue of entitlement to service connection for the cause of the veteran's death as residual to occupational radiation exposure to ionizing and non-ionizing (microwave) or EMF waves; review the claims file for VCAA compliance; and issue a Supplemental Statement of the Case. In October 2001 and again in February 2002, the RO wrote letters to Ellsworth Air Force Base, USAF Center for Radiation Dosimetry, and requested information from VAMC Hot Springs. In February 2002, the RO requested the veteran's entire personnel file. Ellsworth AFB confirmed that they had no medical records on the veteran. VAMC Hot Springs advised the RO that the veteran's treatment records had been transferred to Sioux Falls. These records were associated with the claims folder. The Radiation Surveillance Division of the Radiation Dosimetry Branch advised the RO that the Master Radiation Exposure Registry (MRER) and other available USAF records of occupational radiation exposure were queried but no records were located. The RO was informed that "[t]he MRER contains occupational radiation exposure records generated from 1947 to the present. In some cases, standard practice was to maintain records of occupational radiation exposure in individual health, unit, or installation records. We have no way of determining if records of those types exist. Therefore, absence of a record in the MRER should not be considered as conclusive evidence that an occupational exposure to radiation did not occur." The RO contacted VA central office regarding the claim and explained that the veteran's claimed radiation exposure was while serving as a microwave radio repairman in Vietnam. The contact at VA central office said that this type of radiation was not considered ionizing and, therefore, the condition did not need to be considered as due to ionizing radiation. The RO expressed that they had been unsuccessful in locating unit/base addresses to comply with BVA remand. The RO contacted an official at the Radiation Dosimetry Branch who said that submitting requests to the individual units would be "useless" and would "produce zero results". With regard to the August 2003 Board Remand, the Appeals Management Center was instructed to contact the Radiation Surveillance Division of the Radiation Dosimetry Branch to obtain any occupational radiation exposure records in their possession that would in any way document the veteran's exposure to radiation during service in light of the fact that the veteran worked on instrumentation systems on numerous aircraft during his many years of service with USAF between 1948 and 1978, including B-52Gs and B-52Hs and that the underside of at least some of these aircraft apparently displayed radio frequency radiation warnings recommending that a certain distance needed to be maintained from the antenna during operation of the transmitter. In June 2004 the Cleveland's Remand team received a memorandum from the Air Force Institute for Operational Health reporting a negative finding to the history request inquiry. The memorandum stated that "[s]cientific evidence shows that [radio frequency] RF has no chronic health effects and is noncarcinogenic. It does however display characteristics of thermal radiation, similar to sunburn. This would explain the warnings signs the aircraft." Based on the foregoing actions, the Board finds that the RO substantially complied with the Board's May 2001 and August 2003 Remands. Stegall v. West, 11 Vet. App. 268 (1998). VA has a duty to assist the veteran in the development of facts pertinent to his claims. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim of VA benefits. VA has a duty to notify the veteran and his representative, if any, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103; 38 C.F.R. § 3.159(b). VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The Court further noted in Pelegrini that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim of VA benefits. In October 2001, the RO sent a letter to the appellant advising her what evidence was required to substantiate her claim. The letter also asked the appellant to submit certain information. In accordance with the requirements of the VCAA, the letter informed the appellant what evidence and information VA would be obtaining and what evidence the veteran still needed to provide. The letter explained that VA would attempt to obtain evidence such as medical records, employment records, or records from other Federal agencies. While the October 2001 notice letter did not specifically advise the appellant to provide any evidence in her possession that pertains to her claim, she was informed to either send information describing additional evidence or send the evidence itself to VA. The Board finds that the appellant was sufficiently put on notice as to the need for any available evidence to be received by VA and associated with the claims file, whether the evidence was in his possession, obtained by him, or obtained by VA. As noted above, the Pelegrini decision held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, a substantially complete application for DIC was received in October 1999. Thereafter, in a rating decision dated in April 2000, the claim was denied. Only after that rating action was promulgated did the RO, in October in October 2001, provide notice to the appellant regarding what information and evidence was needed to substantiate her claim. Because the VCAA notice in this case was not provided to the appellant prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. While the notice provided to the appellant in October 2001 was not given prior to the first AOJ adjudication of the claim, the notice was provided by the AOJ prior to the transfer and certification of his case to the Board, and the content of the notice letter fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). The appellant has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notices. Therefore, not withstanding Pelegrini, to decide the appeal would not be prejudicial to her. With respect to VA's duty to assist, the RO obtained the veteran's service medical records and VA treatment records. As noted above, attempts were made to verify the veteran's radiation exposure. The appellant has not referenced any unobtained evidence that might aid her claim or that might be pertinent to the bases of the denial of her claim. As such, the Board finds that VA has done everything reasonably possible to assist the appellant. In the circumstances of this case, additional efforts to assist her in accordance with the VCAA would serve no useful purpose. The appellant contends that the veteran died from leukemia caused by radiation exposure he experienced in service. To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by service (i.e., a service-connected disability) either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but, rather, there must have been a causal connection. 38 C.F.R. § 3.312. Service connection may be granted for disability due to a disease or injury which was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection will be rebuttably presumed for certain chronic diseases, including leukemia, which are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection for a disorder 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 (1996), affirmed at 120 F.3d. 1239 (Fed. Cir. 1997). First, there are specific diseases, including leukemia (other than chronic lymphocytic leukemia) which may be presumptively service connected if manifest in a radiation-exposed veteran. A "radiation-exposed" veteran is one who participated in a radiation-risk activity. A "radiation-risk activity" includes onsite participation in a test involving the atmospheric detonation of a nuclear device or participation in the occupation of Hiroshima or Nagasaki between August 6, 1945 and July 1, 1946. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Second, certain listed "radiogenic" diseases, listed under 38 C.F.R. § 3.311(b)(2), found 5 years or more after service in an ionizing radiation exposed veteran, may also be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. Among the listed diseases are all forms of leukemia except chronic lymphatic (lymphocytic) leukemia. When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of certain activities including the occupation of Hiroshima or Nagasaki, Japan from September 1945 until July 1946; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest in the period specified, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. §§ 3.311(b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in- service radiation exposure. 38 C.F.R. § 3.311(c)(1). Third, service connection for a condition claimed to be due to radiation can also be established by showing that the disease was incurred during or aggravated by service, a task which includes the difficult burden of tracing causation to a condition or event during service. See Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). In this case, the veteran served on active duty from 1948 to 1952 and from 1954 to August 1978, and he died from acute myeloid leukemia in 1999. He was service-connected for bilateral hearing loss, but it is neither claimed nor shown that this established service-connected condition played any role in his death. The veteran's fatal leukemia is first shown decades after service, but the appellant asserts that it should be deemed service-connected as being the result of radiation exposure from working on the aircraft and test equipment that were exposed to radiation. However, there is no evidence that the veteran was ever exposed to ionizing radiation during service. No such exposure is shown by the veteran's service medical records or by the veteran's personnel records. Furthermore, development done by the RO reveals no evidence that the veteran was ever exposed to ionizing radiation. In addition, the evidence of record does not show, and the appellant does not contend, that the veteran ever participated in a radiation risk activity as defined by 38 C.F.R. § 3.309 (d)(3). As actual radiation exposure during service is not shown by the evidence, nor is there medical evidence to link the veteran's fatal leukemia with any incident of service, the veteran's fatal leukemia must be found to be non-service- connected. The weight of the credible evidence demonstrates that a service-connected disability did not cause or contribute to the veteran's death. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for the cause of the veteran's death is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs