Citation Nr: 0209591 Decision Date: 08/09/02 Archive Date: 08/21/02 DOCKET NO. 94-26 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for multiple system disease due to immune deficiency as a result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: Michael E. Wildhaber, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from January 1945 to April 1947. In September 1992, the Regional Office (RO) denied the veteran's claim for service connection for multiple system disease due to immune deficiency as a result of exposure to ionizing radiation. He was notified of this decision and of his right to appeal by a letter dated later that month, but a timely appeal was not filed. He subsequently sought to reopen the claim. By letter dated in April 1994, the RO informed the veteran that his claim for service connection for multiple system disease due to immune deficiency caused by radiation exposure was denied since new and material evidence it had requested in a letter of January 1994 had not been furnished. When this case was previously before the Board in March 1997, it was denied on the basis that a causal relationship between the veteran's multiple system disease due to immune deficiency was not related to service, including any radiation exposure therein. The veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court) which, by Order dated February 2, 1999, vacated the Board's decision and remanded the matter. In a decision dated in October 1999, the Board found that the evidence submitted by the veteran was new and material and reopened the claim. In addition, the Board concluded that the claim was well grounded, and remanded it to the RO for additional development. As the requested development has been accomplished, the case is again before the Board for appellate consideration. FINDINGS OF FACT 1. The Defense Threat Reduction Agency (DTRA) determined that the internal and external dose assessments were 0.0 rem. 2. Multiple system disease due to immune deficiency was not present during service or for many years after service, and has not been etiologically related to service, to include due to exposure to ionizing radiation in service. CONCLUSION OF LAW Multiple system disease due to immune deficiency was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.303, 3.311 (2001); 38 C.F.R. § 3.309 (as amended by 67 Fed. Reg. 3612 - 3616 (January 25, 2002)). REASONS AND BASES FOR FINDINGS AND CONCLUSION Recently enacted legislation has eliminated the well-grounded claim requirement, has expanded the duty of the Department of Veterans Affairs (VA) to notify the veteran and the representative of the information and evidence necessary to substantiate a claim, and has enhanced VA's duty to assist a veteran in developing the evidence necessary to substantiate a claim. See Veterans Claims Assistance Act (VCAA) of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001)). VA issued regulations to implement the VCAA in August 2001. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The amendments were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), which are effective August 29, 2001. VA has stated that the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA. 66 Fed. Reg. 45,629. Accordingly, in general where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. VA has met its duty to notify and assist in the veteran's case. Rating decisions apprised the veteran of the reasons and bases for the VA decision. A statement of the case, and supplemental statements of the case, apprised the veteran of the law applicable in adjudicating the appeal. The correspondence reflects that the veteran's representative received a copy. There is no indication that this correspondence was returned as undeliverable. As such, the Board finds that the correspondence clearly satisfied VA's duty to notify the veteran of the information and evidence necessary to substantiate his claim. Regarding VA's duty to assist, the Board notes that the claims file contains the veteran's service medical records as well as post-service VA and private medical records. The veteran has not indicated that there is any additional evidence that could be obtained. Additionally, the record contains private and VA clinical opinions as to the etiology of the disability at issue. Accordingly, the Board finds that all information and evidence have been developed to the extent possible and that no prejudice will result to the veteran by the Board's consideration of this matter. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). The record discloses that the veteran's service medical records are unavailable. In cases such as these, the VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the veteran's claim was undertaken with this duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the veteran. Russo v. Brown, 9 Vet. App. 46 (1996). However, in light of the extensive evidence of record, which includes statements from several of the veteran's private doctors, and radiation dose assessments from the Defense Threat Reduction Agency, the Board finds that the evidence of record provides a sufficient basis on which the claim may be adjudicated. Accordingly, another attempt to procure the service medical records is not necessary. The veteran asserts that he developed multi-system disease due to immune deficiency as a result of his exposure to ionizing radiation when he served in Hiroshima following the detonation of the atomic bomb. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active wartime service. 38 U.S.C.A. § 1110. Certain diseases are also statutorily presumed to have been incurred in service by radiation-exposed veterans; however, multi-system disease due to immune deficiency is not one of those diseases. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.309(d) (as amended y 67 Fed. Reg. 3612 - 3616 (January 25, 2002)). Nevertheless, if the veteran can show that he was a "radiation-exposed veteran" who subsequently developed a radiogenic disease, and such disease first became manifest within the period specified in 38 C.F.R. § 3.311(b)(5), the claim will be referred to the Under Secretary for Benefits for consideration of whether sound scientific and medical evidence supports the conclusion it is at least as likely as not that the veteran's disease resulted from exposure to radiation in service. The Under Secretary for Benefits may request an advisory medical opinion from the Under Secretary for Health. 38 C.F.R. § 3.311(b) and (c). The term radiogenic disease includes skin cancer. 38 C.F.R. § 3.311(b)(2). Pursuant to the provisions in 38 C.F.R. § 3.311(e), several factors must be considered in determining whether a veteran's disease resulted from exposure to ionizing radiation in service, to include: 1) the probable dose, in terms of dose type, rate and duration as a factor in inducing the disease; 2) the relative sensitivity of the involved tissue to induction, by ionizing radiation, of the specific pathology; 3) the veteran's gender and pertinent family history; 4) the veteran's age at 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. During the pendency of this appeal, the Secretary amended 38 C.F.R. § 3.309(d) relating to presumptive diseases attributable to radiation risk. The amendments became effective March 26, 2002. 67 Fed. Reg. 3,612 3,616 (Mar. 26, 2002) (to be codified at 38 C.F.R. § 3.309(d)). The amendments adds cancers of the bone, cancer of the brain, cancer of the colon, cancer of the lung, and cancer of the ovary to the list of diseases which may be presumptively service connected, and amends the definition of the term "radiation-risk activity" to include the veteran's presence at certain other locations. See 67 Fed. Reg. 3,612 3,616 (Mar. 26, 2002). Service connection can be established on a direct basis under the provisions of 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Applicable regulation also provides if a claim is based on a disease other than one of those listed in paragraphs (b)(2) or (b)(3) of this Section 3.311, VA shall nevertheless consider the claim under the provisions of this section provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. 38 C.F.R. § 3.311(b)(4). 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 C.F.R. § 3.303(d). VA shall consider all information and lay and medical evidence of record in a case before it with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. However, the benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The evidence in support of the veteran's claim consists of his statements, including his testimony at a hearing at the RO in July 1995, an October 1996 letter from the Radiation Effects Research Foundation, a March 2001 statement from C.N. Bash, M.D. and various statements from his private physician. In July 1984, W.J. Rea, M.D. reported that it was "possible" that the veteran's problems were caused by radiation, but that he could not be sure. In April 1987, Dr. Rea wrote that the veteran had to avoid all chemicals, live in a chemically free house, eat organic foods and take vitamins to keep his immune system from further deteriorating. He added that the veteran had not informed him of his exposure to radiation in Japan until February 1984. He commented that he felt that the veteran's exposure to radiation in Hiroshima was in all probability the initial cause of his illness and that the exposure to formaldehyde aggravated the preexisting condition. Dr. Rea related in February 1998 that it was his opinion that the veteran had significant radiation exposure while it service and that this would have had a significant effect on his immune system. In February 2000, Dr. Rea reported that the veteran had a long history of multi-organ system damage with symptoms such as headaches, fatigue, weight loss, insomnia, arrhythmia, cold extremities, myalgia, burning of the eyes, frequent sore throats, irritability, depression and blurred vision. He noted that the veteran's medical history revealed exposure to ionized radiation during the Hiroshima bombing. A physical examination revealed small dermatological tumors at the left scapular area. Dr. Rea indicated that the veteran had elevated CEA (carcinoembryonic antigen), which is a marker for cancer. He stated that genetic mutation and alteration secondary to radiation resulting in increased malignancy incidence has been scientifically proven. He concluded that with the data collected from the diagnostic work-up, the veteran's medical history and physical examination, the veteran had a significant exposure to radiation and this resulted in multi-organ system dysfunction, exposure affecting his immune system. In March 1989, another private physician stated that excessive radiation exposure can cause a breakdown in the immune system. A letter dated in October 1996 from the Radiation Effects Research Foundation is of record. It was reported that ionizing radiation was known to lower the immune system function of irradiated people. In a letter dated in March 2001, Dr. Bash noted that he had reviewed the veteran's pertinent medical and other records, including a copy of the claims folder, the post-service medical record, statements from physicians, an interview with the veteran in February 2001, some private medical records and a review of the medical literature. He concluded that the veteran's multi-organ system damage was caused by his wartime exposure to uranium because he had high uranium values and he did not have a history of exposure to uranium outside his military service. He noted that the opinion of the VA was predicated on the dose estimate provided by the Defense Nuclear Agency (DNA, now known as the DTRA). Dr. Bash indicated that the DNA had estimated that the veteran was exposed to a dose of less than 1 REM/rad. He believed that the DNA's estimate was based on flawed conclusions. In this regard, he stated that he did not think the DNA's estimate was based on the worst case assumption, and he specifically disagreed with the estimate of 1 REM/rad for the veteran. He indicated that tests of local soil, air and water radiation levels in Japan several days after the arrival of United States troops were the bases for the DNA estimate. He opined that the dose calculations were temporally not accurate because the dose information did not correlate to the actual dates the troops were exposed. Dr. Bash further indicated that the DNA document assumed that the troops were only exposed to radiation for an eight-hour workday. He stated that the DNA could not document the locations of the troops over a typical 24-hour period and that, therefore, a more accurate estimate would be to assume that they were exposed for a 24-hour day. This, he stated, would triple the dose to at least three rem. Dr. Bash observed that the DNA assumed that the troops did not consume any of the local water, and this would have been highly radioactive. He reported, based on an interview with him, that the veteran stated that he drank water from local sources while in Hiroshima since no special water was provided. In light of his assumptions, Dr. Bash estimated that the troops in the Hiroshima area likely had doses closer to the 5-10 REM/rad (0.5-1 Gray) level based on the length of time of exposure to radiation and the consumption of contaminated local water. Dr. Bash also referred to a private laboratory test that showed that the veteran had a urine level of uranium of 20 mg/L level. He commented that the medical literature supports the statement that a high level of urine uranium, such as that found in the veteran, indicates that there has been high levels of radiation exposure in the past. He concluded that the test meant that the veteran likely received a significant dose during his wartime experience since he was still excreting a high level of radiation- containing urine several decades after his tour in Japan. Dr. Bash further pointed out that the VA examiner conceded that exposure to ionizing radiation can affect the immune system. He disagreed with her "dose, and the time course of the affects she states, based on the National Institutes of Health (NIH) multi-national life-span study..." He stated that the NIH study indicated that changes to the immune system can occur several decades after exposure in patients with what was previously thought to be relatively low radiation doses (1 REM/rad). He asserted that the VA physician erroneously quoted the literature as stating that the threshold for radiation effects only occur both immediately after exposure and at higher doses. In sum, Dr. Bash concluded that it was his opinion that the veteran's multi-system dysfunction was due to his exposure in service to abnormally high levels of uranium because of his current high urine values and his negative history of other potential sources of uranium exposure. He stated that the veteran's excessive uranium had likely been stored in his bones, which were in close proximity to the immune system. He added that the proximity of the excess radiation to the immune system, over the long term, likely accounted for the veteran's multi-system failure. The evidence against the veteran's claim consists of dose estimates from the DNA and the DTRA, the report of a VA examination conducted in September 2000, opinions from the Chief Public Health and Environmental Hazards Officer and statements from the Director of VA Compensation and Pension Service. In a January 1990 letter to the veteran, the DNA noted that a scientific dose reconstruction titled Radiation Dose Reconstruction U.S. Occupation Forces in Hiroshima and Nagasaki, Japan, 1945-1946 had determined that the maximum possible radiation dose that might have been received by any individual who was at either Hiroshima or Nagasaki for the full duration of the American occupation. Using all possible "worst case" assumptions, the maximum possible dose any individual serviceman might have received from external radiation, inhalation and ingestion was less than one rem. It was further reported that this did not mean that any individual approached that level of exposure. The letter added that it was probable that the great majority of servicemen assigned to the Hiroshima and Nagasaki occupation received no radiation exposure whatsoever, and that the highest dose received by anyone was a few tens of millirem. In a November 1995 letter to the RO, the DNA reported that a review of service records verified that the veteran was present in the VA-defined Hiroshima area during the period from October 7, 1945 through November 22, 1945. The letter then reaffirmed the dose estimate in the January 1990 letter to the veteran. In February 1996, the Assistant Chief Medical Director for Public Health and Environmental Hazards noted that the DNA had estimated that the veteran was exposed to a dose of ionizing radiation during military service of less than one rem. She noted that the CIRRPC Scientific Panel Report Number 6, 1988, did not provide screening doses for immune deficiency/multiple chemical sensitivity. She stated that impairment of the immune system by ionizing radiation was an example of a deterministic effect, which is considered to have a threshold and for most healthy individuals the probability of causing harm would be close to zero at doses of less than 10 rem. The physician reported that various changes related to immunologic function had been found after exposure to ionizing radiation, but the doses studied were typically higher than that reported for the veteran. She also indicated that restoration of immune function was generally inversely related to dose. She further commented that multiple chemical sensitivity was a subject of continuing controversy and was not currently recognized as a bona fide medical diagnosis by her office. In light of the above, the physician concluded that it was unlikely that the veteran's illness could be attributed to exposure to ionizing radiation during service. Based thereon, the VA Compensation and Pension Service Director concluded the following month that there was no reasonable possibility that the veteran's disability was the result of exposure to ionizing radiation during service. The veteran was afforded an examination by the VA in September 2000. He related that he was sent to Hiroshima approximately two to three months after the bomb was detonated, and that he stayed for about two days. He reported that he was healthy and had no untoward effects of the experience until 1979 when he moved into a new office building. He stated that formaldehyde was present and he began to experience symptoms including dizziness, headaches, nausea and memory loss. The physician noted that the claims folder was reviewed. Following the examination, the assessment was sensitivity to multiple chemicals, by history. The examiner commented that the veteran had a dose of radiation equal to or less than one rem, and that this was a very low dose. She noted that it was clear that exposure to ionizing radiation can affect the immune system, and that in nearly all instances this was due to a depression in the immune system response due to radiosensitivity of the lymphocytes. However, this occurred after doses of at least two to four rads, and was recognized soon after exposure. She further noted that immune disease that develops during a time period that is markedly delayed from the original exposure to a very low level of ionizing radiation is not recognized in the literature. The doctor added that there was no precedent for radiation exposure causing multiple chemical sensitivity. She opined, therefore, that it was unlikely that there existed a causal relationship between the veteran's multiple system disease and his exposure to ionizing radiation in service. In March 2002, the DTRA provided another dose assessment for the veteran. It was noted that the veteran arrived at Hiro on October 7, 1945 and remained at that location until November 22, 1945. The report indicated that the veteran had provided a statement indicating that while he was in Hiro, he visited Hiroshima twice over a period of two days, and stated that he spent the entire time in that city within an 8-10 block radius of ground zero during both days. The veteran further noted that he went inside the only building left standing during ground zero on several occasions. The DTRA stated that the veteran's only source of potential radiation exposure was from neutron-induced radionuclides and fallout from the Hiroshima detonation. It was noted that by the time he arrived at Hiro in early October, the radiation intensity beyond a few hundred yards of ground zero had decayed to well below 0.1 mR/hr. The external dose assessment was 0.0 rem. The internal dose assessment was also 0.0 rem. Following the revised dose assessment from DTRA, in April 2002, the veteran's file was again referred to the Chief Public Health and Environmental Hazards Officer. It was reiterated that it was unlikely that the veteran's disorder diagnosed as multiple system disease due to immune deficiency could be attributed to exposure to ionizing radiation in service. Based thereon, the VA Compensation and Pension Service director concluded that same month that there was no reasonable possibility that the veteran's disability was the result of exposure to ionizing radiation during service. In regard to whether the evidence supports service connection on a direct, nonpresumptive, basis under 38 C.F.R. § 3.303, the evidence fails to show any symptoms associated with multi-system disease due to immune deficiency for many years after service. Additionally, there exists no competent medical evidence relating the post service multi-system disease due to immune deficiency to service, on a nonpresumptive basis, as contemplated by 38 C.F.R. § 3.303(d). After a review of all the evidence of record, the Board concludes that the preponderance of the evidence does not demonstrate that the veteran's multi-system disease due to immune deficiency is the result of exposure to ionizing radiation during service. The exposure to ionizing radiation during service was calculated as 0.0 rem and VA's Chief Public Health and Environmental Hazards Officer determined that it was unlikely that the veteran's disease is due to exposure to ionizing radiation in service. In this regard, the Board notes that 38 C.F.R. § 3.311 sets forth a procedure for adjudicating claims based on exposure to ionizing radiation. The VA complied with that procedure and obtained the dose estimate and an opinion from the Under Secretary for Health. There is no provision in the pertinent regulation for the VA to question or dispute the dose estimate provided by the Department of Defense. It is noted that the dose estimate was prepared based on a review of his unit assignments. The Board acknowledges that Dr. Bash has disputed the dose assessment. Initially, it is noted that he was assuming that the dose assessment was less than 1 rem. In fact, subsequently, the DTRA concluded that the dose assessment was 0.0 rem. The fact remains that the dose assessment provided by Dr. Bash is based purely on speculation. In contrast, the dose assessment of the DTRA is predicated on the veteran's actual presence in Hiroshima. The Board finds, therefore, that the conclusions of Dr. Bash are unreliable since they are based on erroneous assumptions. Similarly, the opinions of the veteran's private physician, Dr. Rea, are not based on any dose assessments. The Court has addressed the question of the weight to be accorded to medical opinions of the claimant's treating physician. In Guerrieri v. Brown, 4 Vet. App. 467 (1993), the Court specifically declined to adopt the "treating physician" rule. In Schisler v. Heckler, 787 F.2d. 76, 81 (2nd Cir. 1986), the United States Court of Appeals for the Second Circuit promulgated the rule as follows: [The] treating source's opinion on the subject of medical disability, i.e., diagnosis and nature and degree of impairment, is (i) binding on the factfinder unless contradicted by substantial evidence; and (ii) entitled to some extra weight, ...although resolution of genuine conflicts between the opinion of the physician, with its extra weight, and any substantial evidence to the contrary remains the responsibility of the fact-finder. The rule was adopted for the Social Security system to resolve conflicting medical evidence. However, in refusing to invoke the rule for the VA adjudication system, the Court held that the Board "must articulate the reasons or bases for accepting or rejecting the medical opinions of treating physicians and psychologists for the weight it ascribes to the evidence. Guerrieri, at 472. In White v. Prinicipi, No. 00-7130 (Fed. Cir. March 27, 2001), the United States Court of Appeals for the Federal Circuit upheld the determination of the Court that failed to adopt the "treating physician" rule. The Board notes that the opinions of the VA examiner in September 2000, and of the Chief Public Health and Environmental Hazards Officer were predicated on a review of the claims folder and the appropriate dose assessment. Accordingly, they are of greater probative value than the opinions furnished on behalf of the veteran. The Board concludes, therefore, that the preponderance of the evidence is against the claim for service connection for multiple system disease due to immune deficiency as a result of exposure to ionizing radiation. ORDER Service connection for multiple system disease due to immune deficiency as a result of exposure to ionizing radiation is denied. U. R. POWELL Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.