BVA9409978 DOCKET NO. 90-26 615 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The appellant is the veteran's spouse. The veteran served in the active air service from February 1961 to September 1963. His specialty was an air policeman. This appeal arises from a January 1989 rating decision of the Providence, Rhode Island, regional office (RO). In that decision, entitlement to service connection for the cause of the veteran's death was denied. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO erred when it denied entitlement to service connection for the cause of the veteran's death. Specifically, she argues that he died as a result of exposure to ionizing radiation while guarding nuclear weapons and his exposure to non-ionizing radiation while maintaining security around a radar site. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the appellant's claim for entitlement to service connection for the cause of the veteran's death. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The veteran's death was caused by renal cell carcinoma with metastasis to retro-peritoneal area and to bone. 3. The veteran had established service connection for anxiety, evaluated as 10 percent disabling at the time of his death in August 1988. 4. His renal cell carcinoma was not present in service, and was first noted in 1986, many years after service separation. 5. While the veteran was in the proximity of nuclear missiles, occupational exposure to ionizing radiation is not confirmed by the service department. Renal cell carcinoma was not related to any disease or injury of service origin, or any radiation exposure during service. 6. There is no competent evidence of an etiological relationship between kidney cancer and exposure to any non-ionizing radiation in the form of radar frequencies during service. CONCLUSIONS OF LAW 1. The veteran's renal cell carcinoma was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred, nor was it related to exposure to non-ionizing or ionizing radiation in active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.311b (1993). 2. A disability incurred in or aggravated by service did not cause or contribute substantially or materially to cause death. 38 U.S.C.A. §§ 1310, 5107(a) (West 1991); 38 C.F.R. § 3.312 (1993) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim which is plausible. Further, we are satisfied that all relevant facts have been properly developed. There is no indication that there are additional records which have not been obtained which would be pertinent to the appellant's claim. Thus, no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Godwin v. Derwinski, 1 Vet.App. 419 (1991); White v. Derwinski, 1 Vet.App. 519 (1991). Some of the facts are not in dispute. The death certificate indicates that the cause of the veteran's death was renal cell carcinoma with metastasis to the retro-peritoneal area and to bone. This cancer was first noted in 1986. The certificate of death indicates that an autopsy was not performed. Service connection was in effect for anxiety reaction, evaluated as 10 percent disabling at the time of the veteran's death. It is the appellant's contention that the veteran's fatal kidney cancer developed as the result of his exposure to ionizing radiation while guarding nuclear weapons and his exposure to non-ionizing radiation while maintaining security around the radar site. Copies of military records disclose that the veteran was stationed for a period of time in the early 1960's in Thule, Greenland, while with the 4683rd Air Police Squadron and subsequently assigned to the 3902 Combat Defense Squadron at Offutt AFB in Nebraska with duties as an Air Policeman with Weapons System Security. I. Entitlement to Service Connection for the Cause of the Veteran's Death as a Result of Ionizing Radiation Under the applicable criteria, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A.. § 1131. When a veteran has served ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and renal cancer becomes manifest to a compensable degree within one year following separation, such disease shall be presumed to have been incurred in service, even where there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Renal cancer is not subject to presumptive service connection on a radiation basis under 38 U.S.C.A. § 1112 (c). However, service connection for disability due to exposure to radiation can be granted under 38 C.F.R. § 3.311b when it is determined that the veteran was exposed to ionizing radiation in service, that he subsequently developed a radiogenic disease such as renal cancer and that it was first manifested five years or more after exposure. The claim must then be forwarded to the Chief Benefits Director, who must consider the following factors to determine if exposure caused the disease: (1) The probable dose, taking into consideration any known limitations in the dosimetry devices employed in its measurement; (2) the relative sensitivity of the involved tissue to induction, by ionizing radiation, of the specific pathology; (3) the veteran's gender and family history; (4) the veteran's age at the time of exposure; (5) the time lapse between exposure and onset of the disease; and (6) the extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to development of the disease. If any of these above conditions are not met, it shall not be determined that a disease resulted from exposure to ionizing radiation. 38 C.F.R. § 3.311b(1). In order to establish service connection for the cause of the veteran's death, the evidence must show 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 evidence of record includes service medical records from the veteran's period of service with the Air Force. These records are negative for any report of kidney complaints or disease or diagnosis of cancer. Post service medical records show that he was diagnosed in 1986 with primary cancer of the left kidney with metastases to the lungs and bones. A certificate of death shows that the veteran died on August [redacted] 1988, as a result of renal cell carcinoma with metastasis to the retro-peritoneal area and to the bones. In September 1988, the veteran's widow submitted a claim stating that the veteran's death was a direct result of his exposure to ionizing radiation while on active duty. She did not respond to a query from the RO regarding his exposure to radiation, and the appellant's claim was denied by the RO upon rating decision in January 1989. Soon thereafter, she submitted a notice of disagreement and collected evidence in support of her claim, to include photographs of the site where the veteran was stationed (indicating a radiation hazard) and statements by comrades of the veteran. She submitted these documents at an August 1989 personal hearing where she also provided testimony in support of her claim. At the hearing, she testified that she and the veteran were told that his cancer was environmental and that he had come into contact with the cancer causing agent at some time in the past. Among the documents she submitted at the hearing to be added to the record were two statements by fellow servicemen. In the congregate, the statements indicate that the Greenland site contained both missiles and radar units and that certain personnel wore film badges, but the air police did not. Photographs of record show that there was a sign referring to an area of radiation hazard at the site. In response to the RO's request, the Department of the Air Force Occupational and Environmental Health Laboratory at Brooks Air Force Base in Texas provided the following information in October 1989 as to whether the veteran was actually exposed to radiation, and if so, the extent of his exposure. It was noted that the United States Air Force (USAF) Master Radiation Exposure Registry was queried for dosimetry data. They found no external or internal radiation exposure data in the Registry on the veteran. This information, as per the Board of Veterans' Appeals (Board) request in August 1991, was forwarded to the Chief Medical Director for review and expression of opinion. This opinion was rendered in April 1992. It was reported that none of the operations at the radar site in Thule, Greenland, involved ionizing radiation. For this reason, it was noted that dosimeters would not have been issued to personnel unless they were involved with ionizing radioactivity in some special capacity. No records could, therefore, be obtained for Air Police and any exposure to ionizing radiation was to be assumed to have been only at the usual background levels. In a subsequent attempt to obtain a dose estimate, the Board remanded the case once again so that the information could again be forwarded to the Chief Medical Director. In response in March 1994, the Chief Medical Director reported that office was unable to provide any estimate of dosage of ionizing radiation which the veteran may have received in service. It was pointed out that responsibility for providing such information resided with the military service. After careful review of the record, we conclude that the record is against a finding of entitlement to service connection for the cause of the veteran's death, claimed as a result of exposure to iodizing radiation. The evidence does not indicate that renal cell carcinoma began in service or was manifested to compensable degree within one year following separation therefrom. Medical evidence of record shows that the first report of cancer was made at a private facility in 1986. Although it is contended that the veteran was exposed to ionizing radiation during service, the evidence of record shows no actual exposure. In this regard, we point to the October 1989 response by the Department of the Air Force Occupational and Environmental Health Laboratory. This documents pertains to the veteran's radiation exposure history. They found no external or internal radiation exposure data for the veteran. It would be speculative to relate renal carcinoma which was first manifested over 20 years after service separation to alleged occupational exposure to radiation, particularly when exposure is not indicated. Clearly, the veteran's cancer, which ultimately caused his death, did not have its onset during service, now was it caused by exposure to ionizing radiation. No credible competent evidence in support of the claim for service connection of the veteran's kidney cancer has been presented. Therefore, we conclude that no disability incurred in or aggravated by service either caused or contributed substantially or materially to cause the veteran's death. The Board finds that the preponderance of the evidence is against the appellant's claim for service connection for the cause of the veteran's death as a result of ionizing radiation. II. Entitlement to Service Connection for the Cause of the Veteran's Death as a Result of Non-ionizing Radiation It is also contended that the RO erred when it denied entitlement to service connection for the cause of the veteran's death as a result of exposure to non-ionizing radiation. Specifically, it is asserted that this exposure occurred while he was maintaining security around a radar site. In the April 1992 response from the Chief Medical Director discussed above, an opinion was also expressed as to non-ionizing radiation exposure. It was noted that the installations in Thule were high-powered radar units which emitted radio waves and detected reflections of them from objects such as aircraft. The Director stated that scientists did not agree as to possible biological effects of non-ionizing radiation in the radio/radar (RF) frequency range. The most prominent effect was the production of heat in tissues, an effect used in diathermy. While some scientists believed that more subtle effects occurred at a cellular level there was no significant statistical association which had been demonstrated between RF exposure and human cancer. It was noted that none of the studies in this subject mentioned renal cell carcinoma as a possible consequence. Animal experiments had not provided conclusive evidence of carcinogenicity at RF exposures of relatively short duration, and it was reported that there was no generally accepted relationship between various doses of RF radiation and risk of carcinogenesis. It was concluded that it was "highly unlikely" that the veteran's disease could be attributed to his exposure to non-ionizing radiation. While we have reviewed the magazine articles and other literature submitted by the appellant in support of her claim regarding this issue, we note that the information provided does not differ from the conclusion reached by the Chief Medical Director. This literature is of a general nature and does not speak directly to the case at hand. Moreover, at no time is it asserted that renal carcinoma is a possible result of exposure to RF frequencies. As the medical opinion of record concludes that renal cancer is unrelated to this RF exposure from many years earlier, the appellant's claim as to this issue is also denied. No credible competent evidence in support of the claim for service connection of the veteran's kidney cancer has been presented. In addition, the evidence does not show that the veteran's service-connected anxiety hastened or contributed to his death. No etiological relationship between the veteran's kidney cancer and anxiety is suggested in the evidence of record, nor is such a relationship alleged. (CONTINUED ON NEXT PAGE) ORDER Service connection for the cause of the veteran's death is denied. * NANCY I. PHILLIPS (MEMBER TEMPORARILY ABSENT) SAMUEL W. WARNER *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.