Citation Nr: 9935417 Decision Date: 12/21/99 Archive Date: 12/23/99 DOCKET NO. 96-10 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Jennifer Lane, Counsel INTRODUCTION The veteran had active service from August 1951 to August 1971, and he died in June 1992. The appeal arises from a rating decision dated in September 1994 in which the Regional Office (RO) denied service connection for the cause of the veteran's death. The appellant, the veteran's widow, subsequently perfected an appeal of that decision; and the Board of Veterans' Appeals (Board) remanded the case in July 1997 for additional development. The case has been returned to the Board for appellate review. FINDINGS OF FACT 1. All relevant information necessary for an equitable disposition of the appeal of the claim for entitlement to service connection for the cause of the veteran's death on the basis that he died as a result of exposure to radiation while in service has been developed. 2. The veteran died of acute myelogenous leukemia. 3. Acute myelogenous leukemia was not manifested in service, nor was such disorder manifested to a compensable degree within one year of the veteran's separation from service. 4. The veteran did not participate in a radiation-risk activity in service. 5. The veteran's death was not due to a disease caused by exposure to radiation while in service. 6. The veteran served as an in-flight refueling technician during service, and there is competent evidence tending to show that the history of exposure to benzene, used in jet fuel, as reported by the appellant is a possible cause of acute myelogenous leukemia. CONCLUSIONS OF LAW 1. Acute myelogenous leukemia was not incurred in or aggravated by service; nor may such disorder be presumed to have been so incurred or presumed to have been the result of exposure to ionizing radiation. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 2. A disability incurred in or aggravated by service did not cause or contribute substantially or materially to cause the veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1999). 3. The appellant's claim for entitlement to service connection for the cause of the veteran's death on the basis of a claim that his death was due to exposure to jet fuel is well-grounded. 38 U.S.C.A. § 5107(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for the Cause of the Veteran's Death Due to Exposure to Radiation Initially, the Board finds the claim for entitlement to service connection for the cause of the veteran's death on the basis that he died as a result of exposure to radiation while in service well-grounded in light of the medical evidence showing he had leukemia and the lay evidence that he was exposed to radiation in service. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); 38 C.F.R. § 3.303. The Board further finds that the Department of Veterans Affairs (VA) has met its duty to assist in developing the facts pertinent to that claim. 38 U.S.C.A. § 5107. The Board notes that service connection for the cause of the veteran's death is warranted when a service-connected disability was either the principle or primary cause of death or when a service-connected disability substantially or materially contributed to his death. 38 C.F.R. § 3.312. According to the certificate of death, the veteran died in June 1992 and the immediate cause of death was acute myelogenous leukemia, which had been present for six months before his death. It was also noted that that disorder was due to or a consequence of myelodysplasia, which had been present for one and a half years. Additionally, the terminal hospital records show that the veteran was admitted in May 1992. Those records also show that the cause of the veteran's death was acute myelogenous leukemia. The Board also notes that the veteran was service-connected for spastic duodenal cap with vomiting, evaluated as 10 percent disabling; scars from laceration of the face, evaluated as 10 percent disabling; hearing loss with tinnitus of the right ear, evaluated as noncompensably disabling; varicocele of the right testicle, evaluated as 10 percent disabling; and sprain of the left ankle, evaluated as noncompensably disabling, since 1971. However, the appellant does not contend that any service- connected disability played any role in the veteran's death. Rather, she argues that her husband was exposed to radiation in service and that such exposure caused his acute myelogenous leukemia. She also asserts that the veteran's leukemia had its onset during service. Moreover, there is no competent medical evidence that any service-connected disability caused or substantially or materially contributed to cause the veteran's death. Therefore, the Board will determine whether the veteran's acute myelogenous leukemia was incurred in or aggravated by service or was due to exposure to radiation while in service. The Board notes that a disability will be service-connected when that disability resulted from a disease or injury incurred in or aggravated during service; and service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(d). Additionally, when a veteran served continuously for ninety (90) days or more during a period of war or during peacetime service after December 31, 1946, and leukemia became manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though 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; 38 C.F.R. §§ 3.307, 3.309. With regard to a claim for service connection for the cause of the veteran's death on the basis that acute myelogenous leukemia was due to exposure to ionizing radiation during service, the U.S. Court of Appeals for Veterans Claims (Court) (known as the United States Court of Veterans Appeals prior to March 1, 1999) and the Federal Circuit Court have noted that there are three ways in which a veteran may establish service connection for disability which he or she believes was caused by ionizing radiation. First, under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), a radiation- exposed veteran is one who, while serving on active duty, active duty for training, or inactive duty training, was exposed to a radiation risk activity. Radiation risk activity is defined as (1) on-site participation involving atmospheric detonation of a nuclear device, including assignment to official military duties at Naval shipyards involving the decontamination of ships that participated in Operation Crossroads; (2) occupation of Hiroshima or Nagasaki between August 6, 1945 and July 11, 1946; and (3) internment as a POW of the Japanese who was subject to the same degree of exposure as a member of the Hiroshima or Nagasaki occupation forces. 38 U.S.C.A. § 1112(c)(3); 38 C.F.R. § 3.309(d)(3)(ii). Also, according to 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), the diseases which can be service-connected in a radiation-exposed veteran if they become manifest to a compensable degree at any time after discharge are: leukemia (other than chronic lymphocytic leukemia), thyroid cancer, breast cancer, cancer of the pharynx, esophageal cancer, stomach cancer, small intestine cancer, pancreatic cancer, multiple myeloma, lymphomas (except Hodgkin's disease), bile duct cancer, gall bladder cancer, urinary tract cancer (which does not include prostate cancer, according to the regulations), cancer of the salivary glands, and primary liver cancer (except if cirrhosis or hepatitis B is indicated). As previously discussed, there is competent evidence that the veteran had leukemia. However, the preponderance of the probative evidence with regard to any exposure to a radiation risk activity, as defined by 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), is against finding that the veteran was exposed to such an activity. According to a letter dated in February 1998, the Defense Special Weapons Agency searched the morning reports of the veteran's units from 1951 to 1962 and found no entries to indicate that he went to the Nevada Test Site or Pacific Proving Ground during a test. It was also noted that the United States conducted no atmospheric nuclear tests after 1962. Additionally, the Defense Special Weapons Agency reported that available Air Force records did not document the veteran's participation in United States atmospheric nuclear testing and there was no record of radiation exposure for the veteran. With regard to any claim that the veteran was exposed to radiation while serving in Japan, the Board notes that he did not enter service until 1951. Second, under the provisions of 38 C.F.R. § 3.311, the term "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: all forms of leukemia except chronic lymphatic (lymphocytic) leukemia; thyroid cancer; breast cancer; lung 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). Additionally, the provisions of 38 C.F.R. § 3.311(b) do not provide presumptive service connection for radiogenic diseases. Rather, they outline a procedure to be followed in adjudicating a claim for such diseases. When it is determined that a veteran was exposed to ionizing radiation as claimed, and the veteran subsequently develops a radiogenic disease, the claim, before its adjudication, shall be referred to the Under Secretary for Benefits for consideration as to whether the disease resulted from exposure to ionizing radiation in service. If, however, it is determined that the veteran was not exposed to ionizing radiation as claimed, or that he did not develop a radiogenic disease, or it did not become manifest within applicable periods, it shall not be determined that the disease resulted from exposure to ionizing radiation under such circumstances, pursuant to 38 C.F.R. § 3.311(b)(1), (2), (5), and 38 C.F.R. § 3.311(c). In May 1994, the Chief of the Radiation Dosimetry Branch, at the Air Force Armstrong Laboratory at Brooks Air Force Base in Texas, reported that there was no external or internal radiation exposure data on the veteran in the United States Air Force Master Radiation Exposure Registry. In a letter dated in June 1998, an individual from the United States Air Force Radiation Dosimetry Customer Service related that she had searched the time period from August 1951 to August 1971 but had found no internal or external radiation exposure for the veteran in the Registry. Thus, the probative evidence pertaining to whether the veteran was exposed to ionizing radiation while in service is against finding that he was exposed to such radiation. While there is probative competent evidence that the veteran had leukemia, acute myelogenous leukemia may not be presumed to have been incurred as a result of exposure to ionizing radiation under the provisions of 38 C.F.R. § 3.311(b)(1), (2), (5), and 38 C.F.R. § 3.311(c) because he was not exposed to ionizing radiation. Third, where evidence is presented which traces causation of the claimed disability to a condition or event during service, direct service connection can be established under 38 U.S.C.A. §§ 1110, 1131, and 38 C.F.R. § 3.303. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom; Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998); see also McGuire v. West, 11 Vet. App. 274 (1998). The service medical records include no diagnosis of acute myelogenous leukemia. While the appellant contends that certain complaints and symptoms for which the veteran was treated for during service were early manifestations of acute myelogenous leukemia, as a layperson, she is not competent to provide such an opinion. Moreover, the appellant has submitted no competent medical evidence tending to show that any complaint or symptom the veteran had during service was the onset of acute myelogenous leukemia or competent evidence tending to otherwise relate the veteran's acute myelogenous leukemia to service or an event in service. Nor has the appellant submitted any competent evidence that leukemia was manifested to a compensable degree within one year of the veteran's separation from service. Furthermore, the terminal hospital records include a consultation with a physician, who related that the veteran had a history of pre-leukemia syndrome on the basis of marked anemia dating back to 1990, many years after the veteran's separation from service, which subsequently evolved into an acute leukemia state. Finally, when after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such matter shall be given to the claimant. 38 U.S.C.A. § 5107(b). However, for the reasons discussed above, the Board finds 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. II. Service Connection for the Cause of the Veteran's Death Due to Exposure to Jet Fuel The Board notes that the appellant must submit evidence that a claim for entitlement to service connection for the cause of the veteran's death is well-grounded. 38 U.S.C.A. § 5107(a). A well-grounded claim is one which is plausible; that is meritorious on its own and capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Unlike civil actions, the VA benefit system requires more than just an allegation. The appellant must submit supporting evidence that is sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Tripak v. Derwinski, 2 Vet. App. 609, 611 (1992); Grivois v. Brown, 6 Vet. App. 136, 139 (1994). The three elements of a well grounded claim are: (1) evidence of a disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the disability as provided by competent medical evidence. See Caluza, 7 Vet. App. 498, 506; 38 C.F.R. § 3.303. This means that there must be evidence of disease or injury during service, a disability, and a link between the two. Further, the evidence must be competent. That is, the presence of a current disability requires a medical diagnosis; and, where an opinion is used to link the disorder to a cause during service, a competent opinion of a medical professional is required. See Caluza at 504. As discussed above, there is competent evidence that the veteran had acute myelogenous leukemia and that such disease caused his death. Additionally, service personnel records show that he was an in-flight refueling technician during service. Moreover, there is competent evidence tending to show that the history of exposure to jet fuel as reported by the appellant is a possible cause of acute myelogenous leukemia. That evidence is a letter dated in July 1998 from the Chief of Occupational Medicine at the Air Force Medical Operations Agency. That individual related that the development of acute myelogenous leukemia from the exposure to benzene, a constituent of raw jet fuel during the time the veteran was in service, is possible if an exposed worker were to be routinely soaked with jet fuel. In light of the evidence discussed above, the Board finds that the appellant's claim for the cause of the veteran's death on the basis of a claim that his death was due to exposure to jet fuel is well-grounded. For the reasons discussed below, the Board finds that further action is warranted in accordance with the VA's duty to assist in the development of such claim. ORDER Service connection for the cause of the veteran's death on the basis that his death was due to exposure to ionizing radiation is denied. To the extent the appellant is asserting that her claim for entitlement to service connection for the cause of the veteran's death on the basis that his death was due to exposure to jet fuel is well-grounded, that appeal is granted. REMAND In the July 1998 letter, the Chief of Occupational Medicine at the Air Force Medical Operations Agency also related that he would forward the VA's inquiry regarding the veteran to the Air Mobility Command Logistics Directorate for a response, noting that that organization was the major command which currently has most of the personnel who used to perform the type of work that the veteran performed during service. According to the letter, it was anticipated that the Air Mobility Command would provide the VA with information as to whether the usual circumstances of fuel exposure during the time period in question were as described by the appellant. Review of the claims file discloses no response from the Air Mobility Command or further information from the Chief of Occupational Medicine at the Air Force Medical Operations Agency. Under the circumstances discussed above and as for the appellant's claim that service connection is warranted for the cause of the veteran's death on the basis that acute myelogenous leukemia was due to exposure to jet fuel is well- grounded, the Board finds the additional action set forth below is warranted before a final decision of the Board is issued. While the Board regrets the delay involved in remanding this case, under the circumstances discussed above, it is felt that proceeding with a decision on the merits at this time would not withstand scrutiny by the Court. For that reason and to ensure that the VA has met its duty to assist the appellant developing the facts pertinent to her appeal, the case is REMANDED to the RO for the following action: 1. The RO should contact the Air Mobility Command Logistics Directorate directly and request information on whether the usual circumstances of fuel exposure during the time period in which the veteran served as an in-flight refueling technician involved his being routinely soaked with jet fuel. 2. If the Air Mobility Command Logistics Directorate or other such agency provides information which supports finding that the veteran was routinely soaked with jet fuel while serving as an in-flight refueling technician in service, the RO should refer that information along with the rest of the claims file to a VA physician, an oncologist if feasible, for the purpose of reviewing the veteran's entire medical history and information pertaining to his exposure to jet fuel in service. The VA physician is also requested to comment on the relationship, if any, that existed between the veteran's exposure to jet fuel while in service and his acute myelogenous leukemia. The VA physician should also provide rationales for his or her opinions. 3. After the development requested above has been completed to the extent possible, the RO should again review the record in light of the additional evidence. If any benefit sought, for which an appeal has been perfected, remains denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto with additional argument and/or evidence. Thereafter, the case should be returned to the Board. The appellant need take no action until notified. Additionally, the appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 Appeals for Veterans Claims 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. 1999) (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. JEFF MARTIN Member, Board of Veterans' Appeals