Citation Nr: 0614081 Decision Date: 05/12/06 Archive Date: 05/25/06 DOCKET NO. 97-12 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan 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 J. Fussell, Counsel INTRODUCTION The veteran had active naval service from November 1945 to October 1949 and from December 1949 to April 1956. The veteran died in January 1979. The surviving spouse is the appellant. This appeal is before the Board of Veterans' Appeals (Board) from an October 1996 rating decision from the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded in February 2000, June 2003, and February 2005 to verify the veteran's dates of naval service, verify any inservice radiation exposure, and to obtain private clinical records. A hearing was held at the RO in November 1999 before the undersigned Veterans Law Judge (VLJ) of the Board. This type of hearing is often called a travel Board hearing. A transcript of that proceeding is of record. FINDINGS OF FACT 1. The veteran had active naval service from November 1945 to October 1949 and from December 1949 to April 1956. At his death in January 1979, due to cancer which was primary to the lung, his only service-connected disability was postoperative residuals of a vagotomy and pyloroplasty for duodenal ulcer disease (DUD), rated 20 percent disabling. 2. The veteran's fatal lung cancer did not initially manifest until decades after his service in the Navy had ended and is unrelated to his naval service, and the veteran did not have any disability of service origin which contributed substantially and materially to his death, or hasten it, or otherwise aid or lend assistance to it. 3. The veteran's naval service included shipboard service in and around Japan in the immediate years after World War II but his official naval duties did not require him to be within 10 miles of either Nagasaki or Hiroshima and he is not presumed or shown to have been exposed to radiation during his naval service. 4. The veteran was exposed to asbestos during and after naval service but there is no competent medical evidence of a nexus between any inservice exposure and his fatal lung cancer. CONCLUSION OF LAW The veteran's death was not proximately due to or the result of a condition incurred or aggravated during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116, 1131, 1137, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.311, 3.312 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) Effective November 9, 2000, the VCAA and describes VA's duties to notify and assist claimants in substantiating VA benefit claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). Upon receipt of a complete or substantially complete application, VA must inform the claimant of information and medical or lay evidence not of record: (1) necessary to substantiate the claim; (2) that VA will seek to obtain; (3) that the claimant is expected to provide; and (4) request the claimant to submit any relevant evidence in the claimant's possession in accordance with 38 C.F.R. § 3.159(b)(1). 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005); Charles v. Principi, 16 Vet. App. 370, 373-74(2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice should be provided before any initial unfavorable decision. Pelegrini v. Principi, 18 Vet. App. 112 (2004) ("Pelegrini II"); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). The action appealed was in 1996, prior to the VCAA. So, it was impossible to provide notice of the VCAA prior to the enactment thereof. However, in Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006) it was held that, even if there was an error in the timing of the VCAA notice, i.e., it did not precede the initial RO adjudication, it could be cured by affording the claimant a meaningful opportunity to participate in VA's claim processing such that the essential fairness of the adjudication was unaffected. Here, the appellant was provided the required VCAA notice in a letter of March 2004 from the VA Appeals Management Center (AMC). In March 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) holding that the VCAA notice requirements apply to all five elements of a service connection claim which are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In the present appeal, the VCAA notice did not cite the law and regulations governing nor describe the type of evidence necessary to establish an effective date for the disability on appeal. Because, however, the claim is denied, the Board finds no prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As the Board concludes that the preponderance of the evidence is against the claim, any question as to the appropriate effective date is moot. The appellant was notified by the RO in August 1996 to provide any records concerning the veteran's naval service in Japan and that the RO was attempting to verify his service overseas. In response she submitted several photographs. The RO obtained a document indicating that the veteran had served on the U.S.S. Lumen and had participated in the occupation of Okinawa Shima. Subsequently, the appellant reported that the veteran had been treated by a private physician but the private physician responded to an RO request in July 1997 stating that he had no records of the veteran. In March and August 1999 the RO again requested evidence from the appellant and in response she provided two photographs, one of which depicts the veteran on board a ship. The National Personnel Records Center (NPRC) conducted an extensive and thorough search for records concerning the veteran's radiation risk activity and was unable to locate any records and, so, concluded that either NPRC did not have them or that such records did not exist and any further attempts to locate them would be futile. Information obtained from the Internet indicates that the U.S.S. Lumen (upon which the veteran was stationed) arrived at Okinawa on April 17, 1945. It later arrived at Saipan on April 27, 1945, and spent the rest of World War II shuttling cargo among the islands of the South and central Pacific. In mid-September it carried cargo to Japan to provide occupation troops with reinforcements and supplies and returned to the United States in early 1946. In April 2002 the RO contacted the U.S. Armed Service Center for Research of Unit Records (USASCRUR) for ship logs of the U.S.S. Lumen during the veteran's time on that ship, from January 1945 to March 1946, to establish if that ship was at or near Hiroshima or Nagasaki from August 1945 to July 1946. In June 2002 USASCRUR responded stating that there was no history of that ship being in port at Hiroshima or Nagasaki from August 1945 to July 1946, although from September to November 1945 it was at other Japanese ports. The RO wrote to Navy Environmental Health Center Detachment, the National Archives, the Retired Records Section of the Bureau of Naval Personnel, and the Defense Threat Reduction Agency. A response to an RO request was received in September 2002 from the Navy Environmental Health Center Detachment indicating that it had no record of the veteran's occupational exposure to ionizing radiation but it was possible that records of exposure might have been maintained in his medical records (but in this case there are no such records in the veteran's medical records). The National Archives responded in November 2002 with copies of the Log Book of the U.S.S. Lumen from July 1945 to March 1946 which does not document the presence of that ship at Hiroshima or Nagasaki, Japan. The Defense Threat Reduction Agency responded in November 2002 stating that deck logs of the U.S.S. Lumen indicated it was at Otaru and Aomori, Japan, on several occasions between October 10th and November 12th 1945, and each city was more than 600 miles from Hiroshima and Nagasaki. It visited Yokosuka from December 1945 to January 1946 but this city was also about 400 miles or more from Hiroshima and Nagasaki. In summary, the veteran was not within 10 miles of Hiroshima or Nagasaki. Subsequently, postservice private clinical records were received from the Mercy Hospital in February and March 1978. The veteran's service medical records (SMRs) have been obtained and are on file. There is nothing which indicates that the veteran ever received postservice VA treatment. See page 6 of the transcript of the November 1999 travel Board hearing. The appellant testified in support of her claim at hearing before the undersigned traveling Veterans Law Judge in November 1999. The more recent statements and correspondence from the appellant and her representative do not make reference to or otherwise mention any additional treatment from other sources (e.g., private or non-VA, etc.). Accordingly, no further development is required to comply with the VCAA or the implementing regulations. And the appellant is not prejudiced by the Board deciding the appeal without first remanding the case to the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). Governing Laws and Regulations and Legal Analysis To establish service connection for the cause of a veteran's death, the evidence must show that a disability that either was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a), 3.312(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c) (2002). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). Service connection can be accomplished in three different ways for disability that is allegedly due to radiation exposure in service. First, according to 38 U.S.C.A. § 1112(c)(2) (West 2002) and 38 C.F.R. § 3.309(d)(2) (2005), there are types of cancer that will be presumptively service connected if the veteran was a "radiation-exposed veteran" who engaged in "radiation-risk activity." 38 U.S.C.A. § 1112(c)(4)(A) and (B). Second, direct service connection is possible under 38 C.F.R. § 3.303(d) (provided that certain conditions specified therein, pertaining to radiation exposure, are met) with the procedural advantages provided in 38 C.F.R. § 3.311 if the condition is a "radiogenic" disease listed at 38 C.F.R. § 3.311(b)(2)(i) through (xxiv). Third, direct service connection can be established by showing that the disease was incurred during or aggravated by service, which includes the difficult burden of tracing causation to a condition or event during service. Ramey v. Brown, 9 Vet. App. 40, 44 (1996) (citing Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994)) and Hilkert v. West, 11 Vet. App. 284, 289 (1998). Analysis In this case, the veteran died in January 1979 at the age of 52 due to respiratory failure as a consequence of carcinoma of the right lung with metastases of one year duration. No autopsy was performed. At his death in January 1979, due to cancer which was primary to the lung, his only service- connected disability was postoperative residuals of a vagotomy and pyloroplasty for duodenal ulcer disease (DUD), rated 20 percent disabling. It is neither shown nor contended that the veteran's fatal lung cancer first manifested either during military service or within one year of discharge from any period of military service. Rather, it is contended that the veteran's fatal lung cancer is due either to inservice exposure to radiation at Hiroshima or Nagasaki, Japan, or to inservice asbestos exposure. With respect to the contention of inservice radiation exposure, however, there is no evidence which corroborates the contention that the veteran was ever within 10 miles of Hiroshima or Nagasaki, Japan, in the course of his military duties. Repeated efforts to verify the veteran's presence at Hiroshima or Nagasaki, Japan, have only confirmed that he was stationed on a ship a hundred miles of more from either city. Therefore, the appellant's allegations, alone, are not sufficient to support her claim. She has submitted photographs which, it is alleged, confirm the veteran's presence in Japan. However, it is not his presence in Japan which is at issue but, rather, his presence at Hiroshima or Nagasaki, Japan. She had stated that he had told her of his presence at one or both of these sites in Japan. However, for the presumption of inservice radiation to apply, the veteran's presence at Hiroshima or Nagasaki, Japan, would have to be in the course of his military duties. This is not shown in this case. Rather, as in McQuire v. West, 11 Vet. App. 274, 278-79 (1998) it was noted that 38 C.F.R. § 3.309(d)(3)(i) the term "radiation-exposed" veteran means either a veteran who while serving on active duty participated in a "radiation-risk activity" and that a "radiation-risk activity" was defined, in pertinent part, at 38 C.F.R. § 3.309(d)(3)(i) as the "occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946." In turn, 38 C.F.R. § 3.309(d)(3)(vi) states that "[t]he term ``occupation of Hiroshima or Nagasaki, Japan, by United States forces'' means official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan, which were required to perform or support military occupation functions such as occupation of territory, control of the population, stabilization of the government, demilitarization of the Japanese military, rehabilitation of the infrastructure or deactivation and conversion of war plants or materials." There is no evidence, nor is it contended, that the veteran had any duties such as those listed in 38 C.F.R. § 3.309(d)(3)(vi) that would have brought him to within 10 miles of either Hiroshima or Nagasaki, Japan. This does not mean that the Board doubts that the veteran was ever at or in the vicinity of either city but only that even if he was exposed to radiation during any week-end leave, as was the case in McQuire, Id., that such exposure was not in the course of his "official military" duties and does not afford a presumption of inservice exposure to ionizing radiation. Since there is no applicable presumption of inservice exposure to ionizing radiation, the law and regulations giving rise to presumptive service connection for certain cancers as being due to such exposure, are not applicable. With respect to the contention that the veteran's fatal cancer was due to inservice exposure to asbestos, the Board notes there are no laws or regulations specifically dealing with claims for service connection for residuals of exposure to asbestos. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and decisions of the Court and opinions of VA's General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate a claim of disability as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). As to the M21-1, it provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)). In this regard, the M21-1 provides the following non- exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, Part VI, par. 7.21(a)(1) & (2). The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, Part VI, par. 7.21(b)(1). In addition, the M21-1 notes that, during World War II, several million people employed in U.S. shipyards and U.S. Navy personnel were exposed to asbestos. See M21-1, Part VI, par. 7.21(b)(2). Next, the Board notes that the M21-1 provides the following medical guidance: in order for an appellant to have a clinical diagnosis of asbestosis the record must show a history of exposure and radiographic evidence of parenchymal lung disease (see M21-1, Part VI, par. 7.21(c)); the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease (see M21-1, Part VI, par. 7.21(b)(2)); and exposure to asbestos may cause disease later on even when the exposure was brief (as little as a month or two) or indirect (bystander disease) (Id.). As to the Court, it has held that the M21-1 did not create a presumption of in-service exposure to asbestos for claimants that worked in one of the occupations that the M21-1 listed as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); Also see Ennis v. Brown, 4 Vet. App. 438, vacated at 4 Vet. App. 523, new decision issued at 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993); Ashford v. Brown, 10 Vet. App. 120 (1997). Therefore, in claims for service connection for disability due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to disability was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). As to the General Counsel, in VAOPGCPREC 04-2000 (April 13, 2000), it was held, in relevant part, as follows: M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but nonetheless need to be discussed by the Board in all decisions; the first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and the development criteria it lays out must be followed by the agency of original jurisdiction; and M21-1, Part VI, par. 7.21 does not create a presumption of medical nexus between a current asbestos related disease and military service. With the above facts in mind, the Board concedes that the veteran's extensive work on naval ships in the military resulted in exposure to asbestos insulation, consistent with the M21-1. Specifically, his DD Form 214s reflect that he was a marine steam fitter and a pipe fitter, occupations known to involve exposure to asbestos. Further, it is conceded that as little as one or two months working on a naval ship could have exposed him to enough asbestos to cause a problem 30 years later. However, the Board concludes that the record on appeal does not contain radiographic evidence of parenchymal lung disease or a diagnosis of asbestosis. See M21-1, Part VI, par. 7.21(c). Moreover, the veteran also apparently had civilian occupational exposure to particulate matter. And since this exposure occurred after his service in the military concluded, it cannot serve as a predicate for granting service connection for the cause of his death. This being the case, the claim must be denied because the preponderance of the evidence is unfavorable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for the cause of the veteran's death is denied. ____________________________________________ WARREN W. RICE, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs