Citation Nr: 0809947 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-01 161 ) 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: The American Legion ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The veteran had active military service from April 1941 to February 1946 and from October 1947 to September 1949. He died in March 1981; the appellant is the veteran's widow. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. The veteran died in March 1981. His death certificate lists his immediate cause of death as stomach adenocarcinoma. 2. The veteran was held as a prisoner of war in Japan from May 1942 to September 1945. 3. The competent evidence of record shows that the veteran's stomach adenocarcinoma is related to his active duty service. 4. The veteran's death is causally related to his period of active service. CONCLUSION OF LAW Service connection is warranted for the cause of the veteran's death. 38 U.S.C.A. §§ 1110, 1116, 1310, 1312, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309(d), 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the Veterans Claims Assistance Act (VCAA) of 2000 (codified at 38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126 (West 2002)). Analysis In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2007). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In the case of contributory cause of death, it must be shown that a service-connected disability contributed substantially or materially to cause death. 38 C.F.R. § 3.312(c)(1). The veteran died in March 1981; the primary cause of his death was reported on the death certificate as stomach adenocarcinoma with no contributing causes. The veteran was not service-connected for this disability at the time of his death. The appellant asserts that the veteran's stomach adenocarcinoma is related to his active service. Specifically, she contends that service connection is warranted for the cause of the veteran's death because the veteran was exposed to ionizing radiation. Direct service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the instant case, the available service medical records are negative for any form of cancer. In fact, the veteran's death certificate indicates adenocarcinoma of the stomach had its onset in 1981, over thirty years since his separation from service. Under these circumstances, here is no basis for showing that the veteran's adenocarcinoma of the stomach which resulted in his death was first manifested in service so as to provide a basis for establishing service connection under 38 C.F.R. § 3.303. However, applicable law also provides special provisions dealing with disability due to radiation exposure. Service connection for a disability due to ionizing radiation exposure during service may be established in one of three different ways. Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997). First, there are fifteen types of cancer, including stomach cancer, which are presumptively service connected. 38 U.S.C.A. §1112 (c); 38 C.F.R. § 3.309(d)(2). Second, 38 C.F.R. § 3.311(b) provides a list of "radiogenic diseases" which will be service connected provided that certain conditions specified in that regulation are met. Third, direct service connection can be established by "show[ing] that the disease or malady was incurred during or aggravated by service," a task which "includes the difficult burden of tracing causation to a condition or event during service." Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In the instant case, the appellant's arguments are directed in main part to the presumptive provisions of 38 C.F.R. § 3.309(d). Under this regulation, when a veteran suffers from one of fifteen listed cancers and establishes participation in a "radiation risk activity," then service connection is presumed. As noted above, stomach cancer is one of the listed cancers. As such, the Board must determine whether the veteran participated in a "radiation risk activity." The term "radiation risk activity" means, in pertinent part, on site participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan, or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945, through July 1, 1946. 38 C.F.R. § 3.309(d)(2)(ii). Former prisoners of war who had an opportunity for exposure to ionizing radiation comparable to that of veterans who participated in the occupation of Hiroshima or Nagasaki, Japan includes those who, at any time during the period of August 6, 1945, through July 1, 1946: were interned or can affirmatively show they worked within 75 miles of the city limits of Hiroshima or within 150 miles of Nagasaki; served immediately following internment within 10 miles of the city limits of either Hiroshima or Nagasaki performing or supporting military occupation functions; or were repatriated through the port of Nagasaki. 38 C.F.R. § 3.309(d)(2)(vii). Evidence of record indicates the veteran was interned as a prisoner of war in Osaka from May 1942 to September 1945. There is no affirmative evidence of record to indicate that, during this time, he worked outside the city of Osaka. The Board notes that Osaka is approximately 150 miles from Hiroshima and 300 miles from Nagasaki. In addition, records do not demonstrate, nor has the appellant asserted, that, following internment, the veteran served within 10 miles of either Hiroshima or Nagasaki in a military occupation function. Significantly, while service records indicate the veteran was liberated from internment on September 5, 1945, and subsequently repatriated to the United States, there is no mention of the port from which he was repatriated. The Board notes that former prisoners of war were repatriated to the United States through both the ports of Nagasaki and Yokohama, just outside of Tokyo. The Board further observes that the city of Osaka is nearly equidistant between the two ports. The appellant stated in her VA Form 9 that the veteran "told the family on many occasions of the devastation he saw when he left Japan through Nagasaki." The Board is thus left with a situation where essentially the only evidence pertaining to the veteran's repatriation are his statements as reported by the appellant. It appears that pertinent service personnel records are not available, and while alternate records do not confirm that the veteran was repatriated through the port of Nagasaki, they do not, in the Board's view, confirm that he was not. After reviewing and weighing the evidence on the question of whether the veteran was repatriated through the port of Nagasaki, the Board finds that there is a genuine state of equipoise of the positive and negative evidence. In such a case, the question is to be resolved in the appellant's favor. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, resolving all doubt in the appellant's favor, the Board finds that the veteran was repatriated through the port of Nagasaki, and was therefore involved in a "radiation risk activity." 38 C.F.R. § 3.309(d)(2). The veteran's adenocarcinoma of the stomach is therefore presumed to have been incurred during his active service. See 38 C.F.R. § 3.309(d)(1). As the veteran's death was due to adenocarcinoma of the stomach, service connection for the cause of his death is warranted. ORDER Service connection for the cause of the veteran's death is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs