Citation Nr: 0121975 Decision Date: 08/30/01 Archive Date: 09/06/01 DOCKET NO. 92-02 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to accrued benefits based on a claim for service connection for liver cancer pending at the time of the veteran's death. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney at Law ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had active service from February 1951 to February 1953. He died in March 1990 and the appellant is the veteran's surviving spouse. This matter originally came before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 1990 rating decision of by the Department of Veterans Affairs (VA) Cleveland, Ohio, Regional Office (RO). In July 1993, the Board remanded this matter to the RO to obtain additional evidence and in an August 1994 decision, the Board denied a claim for service connection for the cause of the veteran's death and denied a claim for accrued benefits based on a claim for service connection for liver cancer pending at the time of the veteran's death. The appellant appealed the August 1994 Board decision to the United States Court of Appeals for Veteran Claims (the Court). In a January 1995 Order, the Court vacated the Board's decision and remanded the case for additional development and compliance with Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). Thereafter, the Board remanded this matter to the RO for further development in May 1995 and again in April 1998. In a January 2000 decision, the Board denied the appellant's claims for service connection for the cause of the veteran's death as well as the claim of entitlement to accrued benefits based on service connection for liver cancer pending at the time of the veteran's death. The veteran then appealed the January 2000 Board decision to the Court and in an Order dated in March 2001 the Court vacated the Board's January 2000 decision and remanded the case for further development and adjudication. REMAND As a preliminary matter, the Board notes, as the Court noted in its March 2001 Order, that while the appellant's appeal was pending, there was a significant change in the law pertaining to veteran's benefits. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), which modified the circumstances under which VA's duty to assist claimants applies, and how that duty is to be discharged. The new law affects claims pending on or filed after the date of enactment (as well as certain claims, which were finally denied during the period from July 14, 1999 to November 9, 2000). This law eliminates the concept of a well-grounded claim, and provides that VA will assist a claimant in obtaining evidence required to substantiate a claim. Specifically, the law requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of this notification, VA is required to inform the claimant as to what evidence the claimant is to provide and what evidence, if any, VA will attempt to obtain on the claimant's behalf. This legislation is applicable to this appellant's claim. See Karnas v. Derwiniski, 1 Vet. App. 308, 312-313 (1991). In this case, the RO has not yet considered whether any additional notification or development action is required under the Veterans Claims Assistance Act of 2000 and it would be potentially prejudicial to the claimant if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747) (1992)). In this case the appellant contends that she is entitled to service connection for the cause of the veteran's death and accrued benefits based on a claim for service connection for liver cancer, which was pending at the time of the veteran's death. She asserts that the veteran's fatal liver cancer and cirrhosis were related to or caused by his exposure to radiation during participation in Operation Buster-Jangle in late 1951. Based on a review of the evidence, the Board concludes that this matter must be remanded to the RO for a referral for the preparation of an independent radiation dose estimate pursuant to 38 C.F.R. § 3.311(a)(3) and an independent medical expert opinion regarding the etiology of the veteran's fatal liver cancer. Section 3.311 (2000) of the Code of Federal sets forth regulations governing claims based on exposure to ionizing radiation. Section 38 C.F.R. § 3.311(a)(3) provides for referral to an independent expert when necessary to reconcile a material difference between an estimate of dose from a credible source submitted by or on behalf of the claimant and dose data derived from official military records. When a referral is necessary, the estimates and supporting documentation are referred to an independent expert as selected by the National Institutes of Health. In this case, in November 1998, the RO obtained an executive summary from the National Academy of Sciences (NAS) as provided to the Defense Threat Reduction Agency. This summary provided a radiation dose assessment for the veteran. It was estimated that the veteran was exposed to the following doses of ionizing radiation during military service: external neutron -0.000 rem; external gamma, total and upper bound -0.2 rem; internal 50-year committed dose equivalent to the liver and all other organs -0.0 rem (less than 0.001 rem). In June 2001, the appellant submitted a report to the Board from Craig N. Bash, M.D., Neuro-Radiologist and Associate Professor of Radiology and Nuclear Medicine with Uniformed Services University of Health Sciences. This report was submitted with appropriate waiver of initial RO consideration. In this report, Dr. Bash disputes the validity of the dose estimate provided by the Defense Threat Reduction Agency. In his report, Dr. Bash noted that he reviewed the record and it is his opinion that the veteran's hepatocellular carcinoma was caused by his exposure to radiation during service. Specifically, Dr. Bash notes that the dose estimate of 0.201 rem is flawed and likely inaccurate. Dr. Bash indicated that evidence of record shows that film badges were inaccurate to +/- 100 percent to +/- 40 percent and therefore the dose estimate should have +/- percentages associated with it. The Board concludes that Dr. Bash is a credible source and that his report requires referral to an independent expert for reconciliation of a material difference between his dose estimate and the estimate provided by the Defense Threat Reduction Agency. Additionally, after a separate radiation dose estimate is obtained this matter should be referred for an independent medical expert opinion pursuant to 38 C.F.R. § 20.901(d) (2000) regarding the etiology of the veteran's fatal liver cancer. The record contains several opinions regarding the etiology of the veteran's liver cancer, however, none of the opinions adequately address the evidence of record. Post- service treatment records reveal that the veteran was treated on several occasions for chronic alcoholism which resulted in some damage to his liver. A December 1986 VA treatment record indicates that the veteran was diagnosed with alcoholism and private treatment records dated in June 1989 and July 1989 reflect a diagnosis of cirrhosis of the liver. Additionally, a private August 1989 treatment record reflects that the veteran had a known history of hepatitis, but later records dated in November 1989 show that the veteran was negative for hepatitis B. The veteran underwent a liver transplant in January 1990 as a result of being diagnosed with hepatocellular carcinoma of the liver. In statements dated in September 1995 and June 1997, Robert B. Kirkpatrick, M.D., Chief of Liver Service with the Ohio State University Health Sciences Center, opines that the veteran's liver cancer arose in a cirrhotic liver as a result of radiation exposure. Dr. Kirkpatrick indicated that he was able to exclude viral hepatitis B, hemochromatosis and alpha-1- antitrypsin as causes of the cirrhosis of the veteran's liver. However, Dr. Kirkpatrick did not address dose estimates or the veteran's alcoholism and their role as potential causes of the veteran's liver cancer. VA opinions from the Acting Associate Deputy Chief Medical Director (dated in July 1990) and the Chief Public Health and Environmental Hazards Officer (dated in April 1999) indicate that the veteran's liver cancer was not the result of radiation exposure because he was exposed to such low doses of ionizing radiation. However, the veteran's medical history is not addressed in these opinions. Finally, as indicated, in a June 2001 opinion, Dr. Bash opined that the veteran's liver cancer was caused by his exposure to radiation in service. Dr. Bash concurred with Dr. Kirkpatrick's opinions and discussed the dose estimates of record. However, while Dr. Bash reviewed the veteran's entire medical history, he did not specifically discuss the veteran's alcoholism and hepatitis B and the possible impact if any that these disorders had on the veteran's development of liver cancer. As such, this matter should be referred for an independent medical expert opinion. Accordingly, this matter is Remanded for the following action: 1. Pursuant to 38 C.F.R. § 3.311 (2000), the RO should refer this matter to an independent expert selected by the Director of the National Institutes of Health, who shall prepare a separate radiation dose estimate for consideration in adjudicating the present appeal. 2. After obtaining the dose estimate, the RO should consider referring this matter for an independent medical expert opinion pursuant to 38 C.F.R. § 20.901 (2000) for the purpose of obtaining an opinion regarding the etiology of the veteran's fatal liver cancer. The medical expert should review the entire claims file and provide opinions as to whether (1) the veteran's fatal liver cancer was caused by cirrhosis of the liver due to alcoholism or hepatitis B, and/or whether (2) the veteran's fatal liver cancer was caused by radiation exposure. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (2000), copies of all pertinent records in the veteran's claims file or, in the alternative, the claims file, must be made available to the examiner for review. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. Further, the RO is also requested to review the entire claims file and undertake any additional development necessary to comply with the Veterans Claims Assistance Act of 2000. 4. When the above development has been completed, the RO should readjudicate the case with consideration of the evidence of record. If the decision remains adverse, the appellant and her representative should be issued a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity to respond. The purpose of this REMAND is to further develop the appellant's claim and to obtain clarifying medical information. By this REMAND, the Board intimates no opinion as to the ultimate disposition of the appeal. 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). However, no action is required of the appellant until she is further notified. WARREN W. RICE, JR. Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2000).