Citation Nr: 9809691 Decision Date: 03/30/98 Archive Date: 04/14/98 DOCKET NO. 97-02 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the veteran’s death. 2. Entitlement to dependent’s educational benefits under the provisions of Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.M. Daley, Associate Counsel INTRODUCTION The veteran had active service in the United States Navy from November 1943 to January 1946. He died March 10, 1996; the appellant is his surviving spouse. These matters are before the Board of Veterans' Appeals (Board) on appeal of a June 1996 rating decision from the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant entitlement to service connection for the cause of the veteran’s death and which denied entitlement to Chapter 35 education benefits. REMAND The appellant in this case claims entitlement to service connection for the cause of the veteran’s death. The pertinent facts are summarized below: The veteran’s service medical records reveal treatment for lobar pneumonia and chronic, serofibrinous pleurisy. At the time of his discharge from service in January 1946, no pulmonary or cardiac defects were noted. Service medical records are also absent for notation of any lymphomas (or leukemia). By a March 1950 rating decision, the RO established service connection for residuals of purulent pleurisy (empyema), to include a post-operative scar. The RO assigned evaluations as follows: zero percent from January 21, 1946 to February 22, 1950; 10 percent thereafter. Also by rating decision dated in March 1950, the RO established service connection and assigned a noncompensable evaluation for a right hip scar, effective April 1, 1946. Those evaluations remained in effect until the veteran’s death. The veteran had no other adjudicated service-connected disabilities during his lifetime. In March 1995, the veteran amended his prior claims to include leukemia and skin cancer claimed as residuals of radiation exposure. He contended that he was exposed to ionizing radiation while serving aboard a naval vessel in the Pacific Theater in 1945 after the bombing of Nagasaki. He argued that such radiation exposure caused his subsequent development of non-Hodgkin’s lymphoma. In May 1995, the veteran was hospitalized for mantle cell lymphoma and chronic leukemia. Records from that time period include a notation of recurrent angina secondary to anemia caused by recent onset of mantel cell lymphoma. A June 1995 record indicates that the veteran had no more than six months to live. A report from the Tallahassee Memorial Regional Medical Center, dated in May 1995, indicates that the veteran was admitted with diagnoses of respiratory failure, pneumonia, leukemia, lymphoma, anemia and heart failure. The narrative history indicates that he was diagnosed with leukemia and mantle cell lymphoma three months earlier. The veteran’s family reported that the veteran had suffered a myocardial infarction two months prior. The veteran reported a progressively worsening shortness of breath and chest tightness as well as a productive cough and fevers. Bilateral course crackles and wheezes were heard diffusely in the lungs. The point of maximum impulse was displaced towards the midline; his heart had a regular rhythm without murmur. He was discharged in June 1995. At that time his respiratory failure had resolved, his pneumonia was improving and his chronic obstructive pulmonary disease was stable. By a rating decision dated in June 1995, the RO denied entitlement to service connection for leukemia, skin cancer and mantle cell lymphoma, all claimed as secondary to radiation exposure. The veteran died March 19, 1996. The death certificate identified the immediate cause of death as cerebral anoxia of five minutes duration due to cardiopulmonary arrest of five minutes duration due to chronic obstructive pulmonary disease of many years’ duration. The death certificate also indicates that congestive heart failure and non-Hodgkin’s lymphoma were other significant conditions contributing to death but not resulting in the underlying causes of death specified on the death certificate. Although the death certificate does not mention leukemia, there is medical evidence that the veteran had leukemia, the appellant claims that the veteran’s leukemia was caused by radiation exposure, and leukemia (except for chronic lymphatic (lymphocytic) leukemia) is a radiogenic disease. Therefore, consideration should be given as to whether the veteran’s leukemia was due to any in-service radiation exposure and, if it was, to whether it played any role in his death. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. In determining whether a 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 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1997). Although the veteran was not service-connected for lymphoma or leukemia during his lifetime, service connection may be established where the evidence shows that a disability was incurred in service, see 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1997), or, under the provisions of 38 U.S.C.A. § 1112(c)(1), (2) (West 1991) and 38 C.F.R. § 3.309(1997), certain diseases shall be service- connected if manifested in a radiation-exposed veteran, provided the rebuttable presumptions set forth in 38 C.F.R. § 3.307 (1997) are satisfied. Included among the presumptive diseases are non-Hodgkin’s lymphomas and certain leukemias. A radiation-exposed veteran is one who, while serving on active duty or as a member of a reserve component of the Armed Forces during a period of active duty for training or inactive duty for training, participated in a radiation-risk activity, such as on site participation in a test involving the atmospheric detonation of a nuclear device by the United States, or occupation of Hiroshima or Nagasaki, Japan, by the United States forces from August 6, 1945, to July 1, 1946. 38 U.S.C.A. § 1112(c)(3)(A) (West 1991); 38 C.F.R. §§ 3.309(d)(3)(ii)(A), (B). Attention must also be directed to 38 C.F.R. § 3.311 inasmuch as the veteran’s lymphoma, and possibly his leukemia, was a radiogenic disease. Service connection may also be granted for a 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). Specifically, service connection may be granted for a disease based on ionizing radiation when there is medical evidence linking it to such incident. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). In the instant case, the RO denied the veteran’s claims based on radiation exposure in June 1995, on the basis that he reported being stationed onshore only in Tokyo, and that records did not include verification of radiation exposure. However, it does not appear that the RO requested information regarding the veteran’s dates and places of duty during his service in the Pacific Theater from the Navy or other official sources. Such development would be probative of whether the veteran in fact was exposed to radiation. Accordingly, the Board concludes that further development, to include a search for pertinent service records indicative of potential radiation exposure, is warranted in this case. See also Ramey v. Brown, 9 Vet. App. 40, 44-46 (1996). For the purposes of dependents' educational assistance under 38 U.S.C.A. Chapter 35 (see 38 C.F.R. § 21.3020 (1997)), the surviving spouse of a veteran will have basic eligibility if the veteran was discharged from service under conditions other than dishonorable, and either a permanent total service-connected disability was in existence at the date of the veteran's death or the veteran died as a result of a service-connected disability. As adjudication of such issue is necessarily dependent on the Board’s decision concerning whether the veteran died by reason of service-connected disability, any disposition with respect to that issue is deferred pending the results of this remand. For the reasons set out above, this case is returned to the RO for the following: 1. The RO should contact the appellant and request her to provide identifying information relevant to any additional medical treatment, VA or non-VA, for any of the disabilities, service-connected or nonservice-connected, existing at the time of the veteran’s death. In particular, all records associated with terminal hospitalization and/or any treatment proximate to the veteran’s death in March 1996 should be clearly identified. Evidence specifically identifying the type of leukemia the veteran had is necessary. After securing the necessary release, the RO should obtain any records not currently associated with the claims file. 2. The RO should obtain the veteran’s Navy enlisted personnel record, specifically to include those pages that show his duty stations and assignments, and the dates of same. 3. This claim is based, in part, on the argument that the veteran was exposed to radiation during service. In a statement of March 30, 1995,the veteran claimed exposure to ionizing radiation while his ship, the USS Gosselin (APD 126), was in the port of Japan for four months after the bomb was dropped (at Nagasaki). In the same statement he referred to his belief that he was exposed to radiation on shore and from fallout. In his statement of May 26, 1995, the veteran reported that the Gosselin was off the shore of Japan on the South End, near the Nagasaki area, when the bomb was detonated and that the ship had news correspondents aboard. He reported that after the war the ship docked in Tokyo. Inasmuch as he had a radiogenic disease (non-Hodgkin’s lymphoma) which, according to the death certificate, contributed to his death, and it is claimed that he was exposed to radiation during service, the case should be developed consistent with applicable regulations and instructions pertaining to the development of radiation exposure claims, to include obtaining a dose estimate and referral of the case to the appropriate VA official for an opinion, if indicated. Specifically, the RO should contact the Defense Nuclear Agency (DNA) or other appropriate department and request information as to whether the veteran was involved in a radiation-risk activity, such as the participation in the occupation of Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending July 1, 1946, or otherwise exposed to radiation due to the location of his ship, the USS Gosselin (APD 126). The DNA or other appropriate source should provide detailed information relevant to the distance between the veteran’s various duty locations and Nagasaki, and the duration of time spent at each location. The RO should conduct further development as indicated by VA laws and regulations relevant to radiation claims, including obtaining a dose estimate and an opinion as to whether it is as likely as not that the veteran’s lymphoma or leukemia was caused by ionizing radiation exposure. 4. If, based on comprehensive review of the entire claims file, to include any additionally received information, the RO determines that the veteran was exposed to radiation and that it caused his lymphoma and/or leukemia, the RO should then provide the complete claims file, along with a separate copy of this remand, to a VA specialist to evaluate whether the veteran’s lymphoma and/or leukemia substantially or materially contributed to his death. 5. After the development requested above has been completed to the extent possible, the RO should again review the record and re-adjudicate the appellant’s claims of entitlement to service connection for the cause of the veteran’s death and her claim of entitlement to dependent’s education benefits. If any benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case, containing all potentially applicable laws and regulations not previously included, and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1997) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. JANE E. SHARP Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1997). - 2 -