Citation Nr: 0708168	
Decision Date: 03/19/07    Archive Date: 04/09/07

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:	Oklahoma Department of 
Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

C. Moore, Associate Counsel


INTRODUCTION

The veteran had active service from January 1945 to April 
1947.

This appeal initially arose from an April 1994 letter 
determination of the Muskogee, Oklahoma Regional Office (RO) 
of the Department of Veterans Affairs (VA), which held that 
the veteran was required to submit new and material evidence 
to reopen his previously denied claim for service connection 
for multiple system disease due to immune deficiency as a 
result of exposure to ionizing radiation.  During the 
pendency of the appeal, the RO reopened the claim, considered 
the issue de novo, and proceeded with development of the 
veteran's claim pursuant to 38 C.F.R. § 3.311.  In a decision 
dated in March 1997, the Board of Veterans' Appeals (Board) 
denied service connection for multiple system disease due to 
immune deficiency as a result of exposure to ionizing 
radiation.  

The veteran appealed that determination to the United States 
Court of Appeals for Veterans Claims (Court).  In an order 
dated February 2, 1999, the Court vacated the Board decision, 
and remanded the claim for additional development of the 
evidence.  The additional development was accomplished and 
the case was thereafter returned to the Board.  In a decision 
dated in October 1999, the Board found that new and material 
evidence had been received, and reopened the claim.  In 
addition, the Board concluded that the claim was well 
grounded, and remanded it to the RO for additional 
development.  The requested development was accomplished, and 
the case was again returned to the Board for appellate 
consideration.  By a decision dated in August 2002, the Board 
again denied entitlement to service connection for the 
disability at issue.  In a letter dated July 21, 2003, the 
Board granted the appellant's motion to vacate the August 
2002 Board decision and reconsider the claim.  The Board 
issued a Vacatur on October 27, 2003.  In an action dated 
January 15, 2004, the Board remanded the claim for additional 
development of the evidence.  The additional development has 
been accomplished and the case is again before the Board for 
appellate consideration.  




FINDINGS OF FACT

1.  The Defense Threat Agency (DTRA) determined that the 
maximum possible exposure to ionizing radiation the veteran 
had during service was less than 1 rem.

2.  The competent clinical evidence of record demonstrates 
that multiple system disease due to immune deficiency was 
initially demonstrated years after service, and has not been 
shown by competent evidence to be causally related to the 
veteran's active 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 or aggravated.  38 U.S.C.A. 
§§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. 
§§ 3.303, 3.307, 3.309, 3.311 (2006). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  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) (2006). 

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) 
(West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must 
inform the claimant of any information and evidence not of 
record (1) that is necessary to substantiate the claim; (2) 
that VA will seek to provide; (3) that the claimant is 
expected to provide; and (4) must ask the claimant to provide 
any evidence in her or his possession that pertains to the 
claim in accordance with 38 C.F.R. § 3.159(b)(1).  VCAA 
notice should be provided to a claimant before the initial 
unfavorable agency of original jurisdiction (AOJ) decision on 
a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); 
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

On March 3, 2006, the United States Court of Appeals for 
Veterans Claims (Court) issued its decision in the 
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006).  The Court in Dingess/Hartman holds that the 
VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. 
§ 3.159(b) apply to all five elements of a "service 
connection" claim.  As previously defined by the courts, 
those five elements include:  (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.  Upon 
receipt of an application for "service connection," 
therefore, the Department of Veterans Affairs (VA) is 
required to review the information and the evidence presented 
with the claim and to provide the claimant with notice of 
what information and evidence not previously provided, if 
any, will assist in substantiating or is necessary to 
substantiate the elements of the claim as reasonably 
contemplated by the application.  This includes notice that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  

In the present case, VA satisfied its duty to notify by means 
of a March 2006 letter from the agency of original 
jurisdiction (AOJ) to the appellant.  This letter informed 
the appellant of what evidence was required to substantiate 
the claim, and of his and VA's respective duties for 
obtaining evidence, requested that he submit any additional 
evidence in his possession pertaining to the claim, and 
provided the veteran with notice of the type of evidence 
necessary to establish a disability rating or effective date 
in the event of award of the benefit sought.  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. 
Court of Appeals for Veterans Claims held, in part, that a 
VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be 
provided to a claimant before the initial unfavorable agency 
of original jurisdiction (AOJ) decision on a claim for VA 
benefits.  In the present case, complete VCAA notification 
was not achieved until after the initial AOJ adjudication of 
the claim.  Nevertheless, the Court in Pelegrini noted that 
such requirement did not render a rating decision promulgated 
prior to providing the veteran full VCAA notice void ab 
initio, which in turn would nullify the notice of 
disagreement and substantive appeal filed by the veteran.  In 
other words, Pelegrini specifically noted that there was no 
requirement that the entire rating process be reinitiated 
from the very beginning.  Rather, the claimant should be 
provided VCAA notice and an appropriate amount of time to 
respond and proper subsequent VA process.

Here, the Board finds that any defect with respect to the 
timing of the AOJ VCAA notice letter was harmless error.  
Although the notice was provided to the appellant after the 
initial adjudication, the case was readjudicated thereafter, 
and the appellant has not been prejudiced thereby.  The 
content of the notice provided to the appellant fully 
complied with the requirements of 38 U.S.C.A. § 5103(a) and 
38 C.F.R. § 3.159(b) regarding VA's duty to notify.  Not only 
has the appellant been provided with every opportunity to 
submit evidence and argument in support of his claim and to 
respond to VA notices, but the actions taken by VA have 
essentially cured the error in the timing of notice.  
Further, the Board finds that the purpose behind the notice 
requirement has been satisfied because the appellant has been 
afforded a meaningful opportunity to participate effectively 
in the processing of his claim.  For these reasons, it is not 
prejudicial to the appellant for the Board to proceed to 
finally decide this appeal.  

With regard to the duty to assist, 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.

Legal Criteria

The Board has reviewed all the evidence in the claims folder.  
Although the Board has an obligation to provide reasons and 
bases supporting this decision, there is no need to discuss, 
in detail, the extensive evidence of record.  The Board will 
summarize the relevant evidence where appropriate, and the 
Board's analysis below will focus specifically on what the 
evidence shows, or fails to show, on the claim.  The Federal 
Circuit has held that the Board must review the entire 
record, but does not have to discuss each piece of evidence.  
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
service.  38 U.S.C.A. §§ 1110, 1131.

Certain diseases are also statutorily presumed to have been 
incurred in service by radiation-exposed veterans; however, 
multiple 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.  

Service connection can be established on a direct basis under 
the provisions of 38 U.S.C.A. §§ 1110 or 1131, 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).

Legal Analysis

The veteran asserts that service connection is warranted for 
multiple system disease, due to immune deficiency as a result 
of exposure to ionizing radiation.  In this case, the Board 
observes that the veteran's service medical records have been 
reported to be unavailable.  However, the record demonstrates 
that the veteran participated in a "radiation-risk 
activity" while he served in the military.  Indeed, the 
Defense Threat Reduction Agency (DTRA) has confirmed that 
while serving with "A" Battery, 146th Field Artillery 
Battalion, the veteran was stationed at Hiro Honshu, Japan, 
an area that is in the VA-defined Hiroshima area, from 
October 7 to November 22, 1945.  However, the Board notes 
that multiple system disease due to immune deficiency is not 
currently recognized as a radiogenic disease under 38 C.F.R. 
§ 3.311 or a disease specific to radiation exposed veterans 
under 38 C.F.R. § 3.309.  Nevertheless, 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 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).

In this regard, several private physicians have indicated 
that the veteran's multiple system disease due to immune 
deficiency is related to radiation exposure in service.  For 
example, in July 1984, Dr. W. J. Rea, the veteran's treating 
physician, reported that it was "possible" that the veteran's 
problems were caused by radiation, but that he could not be 
sure.  He reiterated such sentiments in April 1987, when he 
wrote 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.  Additionally in February 1998, he opined that the 
veteran had significant radiation exposure while in service 
and that this would have had a significant effect on his 
immune system.  Likewise, in February 2000, Dr. Rea reported 
a physical examination of the veteran revealed that the 
veteran had small dermatological tumors at the left scapular 
area and 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.

Further, Dr. C. N. Bash, in response to independent medical 
evaluation requests from the veteran's attorney, has also 
opined that the veteran's multiple system disease due to 
immune deficiency was due to ionizing radiation.  In this 
regard, in letters dated in March 2001 and September 2003,  
Dr. C. N, 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 and 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 further stated that the veteran's excessive 
uranium had likely been stored in his bones, which were in 
close proximity to the immune system. 

Other private physician's have also opined that the veteran's 
radiation exposure caused his disability.  In this regard, in 
a March 1989 statement from E. L. Pointer, M.D., notes that 
"[e]xcessive radiation can cause a breakdown of the immune 
system.  Similarly, in March 2005 Dr. D. Mattox indicated 
that the veteran's multiorgan involvement could be linked 
with radiation exposure, which in this case was the radiation 
that occurred at the bombing of Hiroshima.  Additionally, in 
a letter dated in October 1996 from the Radiation Effects 
Research Foundation, it was reported that ionizing radiation 
was known to lower the immune system function of irradiated 
people.

However, despite the numerous opinions of record which 
reflect that the veteran's multiple system disease due to 
immune deficiency is related to radiation exposure in 
service, there exists probative objective evidence to the 
contrary.  Significantly, in June 2006, the Defense Threat 
Reduction Agency (DTRA), reported that the dose of radiation 
"to even the most exposed of the occupation troops in Japan 
from both internal and external exposure was probably well 
below 1 rem."  Specifically, the DTRA, based on the 
veteran's participation scenario and the RDA originate from 
Radiation Dose Reconstruction:  U.S. Occupation Forces in 
Hiroshima and Nagasaki, Japan, 1945-1046 (DNA 5512F), 
estimated that the veteran was exposed to the following doses 
of ionizing radiation during military service: total external 
gamma dose: 0.02, upper bound total external gamma dose:  
0.06; internal committed alpha dose to red marrow: 0.0 rem, 
upper bound committed alpha dose to red marrow: 0.0 rem; 
internal committed beta plus gamma dose to the red marrow: 
0.0002 rem, upper bound committed beta plus gamma dose to the 
red marrow: 0.002 rem; internal committed alpha dose to the 
thymus: 0.0 rem, upper bound committed alpha dose to the 
thymus: 0.0 rem; internal committed beta plus gamma dose to 
the thymus:0.004 rem, upper bound committed beta plus gamma 
dose to the thymus: 0.004 rem.

Further, in July 2006, Dr. L. R. Deyton, M.S.P.H., M.D., the 
Chief Public Health and Environmental Hazards Officer, based 
on the DTRA's dose estimate, opined that it was unlikely that 
the veteran's multiple system disease due to immune 
deficiency could be attributed to exposure to ionizing 
radiation in service.  In reaching this conclusion, Dr. 
Deyton utilized the Interactive Radioepidemiological Program 
(IREP) of the National Institute of Occupational Safety and 
Health (NIOSH).  According to Dr. Deyton, the program 

[did ] not address multiple system 
disease due to immune deficiency.  
[However] damage to the thymus, bone 
marrow or other parts of the immune 
system, other than neoplastic 
transformation, if caused by radiation, 
would be an example of a deterministic 
effect.  [Further,] deterministic changes 
generally are considered to have a 
threshold.  The probability of causing 
harm in most healthy individuals at doses 
of less than 10 rem as a result of 
deterministic effects is close to zero.  
...  Usually a threshold dose on the order 
of hundreds or thousands of rads must be 
exceeded for the deterministic effect to 
be expressed. ...

The Board observes that Dr. Bash, in March 2001 and September 
2003, 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.  In reaching this 
conclusion, Dr. Bash referred to a private laboratory test 
that showed that the veteran had a urine level of uranium of 
20 mg/L level.  According to Dr. Bash, 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.  He 
further opined that because the veteran was in the vicinity 
of the Japanese nuclear detonations that it most likely that 
the veteran's exposure to uranium occurred in World War II.  

However, the DTRA, which utilized the Toxicological Profile 
for Uranium (Agency for Toxic Substances and Disease 
Registry, U.S. Department of Health and Human Services 1999) 
and the Third National Report on Human Exposure to 
Environmental Chemicals (Centers for Disease Control and 
Prevention, U.S. Department of Health and Human Services, 
2005), reported that the analysis of the veteran's urine 
sample (which was provided 55 years after his visit to 
Hiroshima) showed a uranium level of 0.02 ±0.0049 micro grams 
per liter(ug/L) of urine.  According to the DTRA, urinary 
uranium concentrations in unexposed U.S. males range up to a 
95th percentile of 0.053 ug/L and that the veteran's 
urinalysis result lied within the range of typical values, 
just above the 75th percentile (0.015 ug/L).  The DTRA 
further indicated that the veteran would have needed to 
inhale approximately 1.1 grams of uranium in 1945 to produce 
the measured urinalysis result in the calendar year 2000.  
However, such intake exceeds the amount of uranium expected 
to produce serious health effects shortly after exposure.  
Moreover, according to the DTRA, a more plausible explanation 
of the urinalysis result is routine daily intake of natural 
uranium in food, water, and air.

To the extent that Dr. Bash has disputed any of the DTRA's 
dose assessments, 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.  However, 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. 

Likewise, the Board finds the opinions of the other various 
private physicians, which reflect that the veteran's multiple 
system disease, due to immune deficiency is due to radiation 
exposure in service, are not based on any dose assessments or 
a review of the veteran's claims file.  The Court has held 
that a bare conclusion, even one reached by a health care 
professional, is not probative without a factual predicate in 
the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).  
Additionally, a medical opinion based on an inaccurate 
factual premise is not probative.  Reonal v. Brown, 5 Vet. 
App. 458, 461 (1993).  Therefore, the Board finds that the 
private examiners' opinions are not competent, probative 
medical evidence. 

However, on the other hand, the Board observes that the July 
2006 opinion of Dr. Deyton, the Chief Public Health and 
Environmental Hazards Officer, is based on a review of the 
claims folder and the appropriate dose assessment.  
Accordingly, it is of greater probative value than the 
opinions furnished by the private physicians on behalf of the 
veteran.  

In conclusion, although the veteran asserts that his current 
multiple system disease due to immune deficiency is due to 
radiation exposure in service, he is not competent to provide 
an opinion requiring medical knowledge, such as a question of 
medical causation.  Espiritu v. Derwinski, 2 Vet. App. 492 
(1992).  The evidence of record, including the DTRA dose 
estimate and July 2006 medical opinion, is of greater 
probative value than the veteran's statements in support of 
his claim.  Accordingly, the Board finds that the competent 
evidence of record fails to establish that the veteran's 
current multiple system disease due to immune deficiency 
disability is related to his active military service.  The 
Board has considered the doctrine of giving the benefit of 
the doubt to the veteran, under 38 U.S.C.A. § 5107 (West 
2002), and 38 C.F.R. § 3.102 (2006), but does not find that 
the evidence is of such approximate balance as to warrant 
it's application.  Accordingly, the Board finds 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

Entitlement to service connection for multiple system disease 
due to immune deficiency as a result of exposure to ionizing 
radiation is denied.



____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs