Citation Nr: 0810197 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 00-17 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for chronic lymphocytic leukemia (CLL), including as the result of exposure to ionizing radiation, for accrued benefits purposes. 2. Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Douglas J. Rosinski, Attorney at Law WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Parker, Counsel INTRODUCTION The veteran served on active duty from March 1944 to February 1946. Available service personnel records show that he served in the U.S. Naval Reserve, and was transferred to the Retired Reserve in May 1978. This appeal initially came before the Board of Veterans' Appeals (Board) from an April 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The appellant testified at a personal hearing at the RO in July 2000. In February 2004, the appellant also testified from the RO via videoconference personal hearing before the undersigned Veterans Law Judge in Washington, DC. Transcripts of the hearings were added to the record. A motion to advance this case on docket due to the appellant's age was received by the Board in September 2005. This motion was granted by the Board in the same month. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). By way of history, in September 2004, the Board remanded this claim for further development, including to clarify what the veteran had claimed, as well as to re-calculate the veteran's exposure to ionizing radiation under the Defense Threat Reduction Agency (DTRA)'s new methods of calculations, as devised after the May 2003 report by the National Research Council (NRC), in which it was concluded that the methodology previously used by DTRA had underestimated the upper bound doses for external and inhaled exposures to ionizing radiation. The Board also requested that the RO issue a statement of the case concerning entitlement to accrued benefits, denial of which the appellant submitted a notice of disagreement to in May 2000. In September 2004, the RO sent the appellant a statement of the case concerning the issue of service connection for CLL, for the purpose of accrued benefits. The appellant timely perfected this appeal with the submission of a substantive appeal in October 2004. In October 2005, the Board issued a decision on the merits, and the appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2007, the Court vacated the October 2005 Board decision, and remanded these issues to the Board. FINDINGS OF FACT 1. During service, the veteran was a member of the occupation forces in Hiroshima, Japan, and was a radiation- exposed veteran within the meaning of the regulations. 2. In June 1998, the veteran filed a claim for service connection for leukemia, which had been diagnosed as CLL. 3. The veteran died on March [redacted], 1999; his claim for service connection for CLL was pending at the time of his death. 4. The Certificate of Death lists the immediate cause of the veteran's death as cardiogenic shock, and the underlying cause which gave rise to the immediate cause of death was identified as hemolytic crisis, due to CLL. 5. The weight of the competent evidence is in relative equipoise on the question of whether the veteran's exposure to ionizing radiation in service directly caused his CLL, for the purposes of accrued benefits. 6. The weight of the competent demonstrates that the veteran's service-connected CLL contributed substantially and materially to cause his death. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the appellant's favor, the criteria for direct service connection for CLL, as the result of exposure to ionizing radiation in service, for the purposes of accrued benefits, have been met. 38 U.S.C.A. §§ 1110, 1154, 5102, 5103, 5103A, 5107 (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311 (2007); 38 U.S.C.A. § 5121 (West 1991); 38 C.F.R. § 3.1000 (1999). 2. The criteria for service connection for the cause of the veteran's death have been met. 38 U.S.C.A. §§ 1310, 5103, 513A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify 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). Because the full benefits sought on appeal are being granted by this Board decision, no further notice or assistance to the appellant is required. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with the issues on appeal because of the favorable nature of the Board's decision. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection for CLL for Accrued Benefits In this case, in June 1998, the veteran filed a claim for service connection for leukemia, which had been diagnosed as CLL. The veteran died on March [redacted], 1999, and his claim for service connection for CLL was pending at his death. After the veteran's death, in April 1999, the appellant filed a claim for accrued benefits. The appellant contends that the veteran was exposed to ionizing radiation in service, and that such exposure caused the veteran's CLL, so that service connection for CLL should be established, for accrued benefits purposes. Although the veteran's pending claim for service connection for CLL terminated with his death, the regulations set forth a procedure for a qualified survivor to carry on, to a limited extent, a deceased veteran's claim for VA benefits by submitting a timely claim for accrued benefits. 38 U.S.C.A. § 5121; see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Thus, while the claim for accrued benefits is separate from the claim for service connection filed by the veteran prior to his death, the accrued benefits claims is derivative of the veteran's claim, and the appellant takes the veteran's claim as it stood on the date of his death. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996); Jones v. West, 146 F.3d 1296 (Fed. Cir. 1998). In the instant case, the veteran died in March 1999, and the appellant's claim for accrued benefits was received in April 1999. The law applicable to accrued benefits provides that certain individuals may be paid periodic monetary benefits (due and unpaid for a period not to exceed two years) to which the veteran was entitled at the time of his death under existing ratings or based on evidence in the file at the time of his death. 38 U.S.C.A. § 5121(a) (West 1991); 38 C.F.R. § 3.1000 (1999). Here, the appellant, the veteran's surviving spouse, has advanced essentially the same claim for service connection for CLL on the basis of exposure to ionizing radiation, for accrued benefit purposes, which the veteran had pending at the time of his death. In December 2003, Congress amended 38 U.S.C.A. § 5121 to repeal the two-year limit on accrued benefits so that a veteran's survivor may receive the full amount of award for accrued benefits; however, these changes apply only to deaths occurring on or after the date of enactment, December 16, 2003. Because the veteran died before the date of enactment, this change does not apply in this case and is noted only for information purposes. See Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (2003) (codified at 38 U.S.C. § 5121(a) (West 2002 & Supp. 2007). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, including certain cancers, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309. If a condition noted during service is not shown to be chronic, then, generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). Service connection may also 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). To establish a claim for service connection as the result of exposure to ionizing radiation, the evidence must show that the veteran was exposed to ionizing radiation, that he manifested one of the listed radiogenic diseases or that, absent presumptive service connection, the evidence establishes that the current disability was caused by radiation exposure. 38 U.S.C.A. §§ 1112, 1154(a) (West 2002 & Supp. 2007); 38 C.F.R. §3.311 (2007). In Ramey v. Brown, 9 Vet. App. 40, 44 (1996) (citing Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994)), the Court held that service connection for disabilities claimed to be due to ionizing radiation exposure during service can be accomplished in three ways. See also Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service connected under 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Combee, 34 F.3d 1039. A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as either a veteran who, while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined as onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, by U.S. forces during the period of time from August 6, 1945 through July 1, 1946; or internment as a prisoner of war in Japan during World War II, and/or service on active duty in Japan immediately following such internment, resulting in the opportunity for exposure to ionizing radiation comparable to that of U.S. occupation forces in Hiroshima or Nagasaki, Japan from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(b)(i), (ii). The provisions of 38 C.F.R. § 3.309 provide that, if a veteran participated in a radiation-risk activity, the following diseases shall be service connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied: Leukemia (other than chronic lymphocytic leukemia); cancers of the thyroid, breast, pharynx, esophagus, stomach, small intestine, pancreas, bile ducts, gall bladder, salivary gland and urinary tract; multiple myeloma; lymphomas (except Hodgkin's disease); and primary liver cancer (except if cirrhosis or hepatitis B is indicated). 38 C.F.R. § 3.309(d). In this case, the evidence shows that, during service, the veteran was a member of the occupation forces in Hiroshima, Japan, and was a "radiation-exposed" veteran as defined by 38 C.F.R. § 3.309(d)(3)(i). Service personnel records reflect that the veteran served as a coxswain on board the USS Cecil (APA-96), which service department records and Ship's Logs confirm was present in the waters off Japan following August 1945. These records further show that the veteran was a member of the Boat Landing Group, and that his duties took him inland to Japan and, specifically, to Hiroshima. These records establish that he was present in the VA-defined Hiroshima area from October 6 to October 9, 1945. As the evidence of record establishes that the veteran participated in this "radiation-risk activity" as defined by 38 C.F.R. § 3.309(d)(3), he is considered a "radiation- exposed veteran." Chronic lymphocytic leukemia (CLL) is specifically precluded from the cancers specifically listed under (2). Thus, the CLL which contributed to the veteran's death cannot meet the criteria for presumptive service connection under the regulations. See 38 C.F.R. § 3.309(d). As indicated, the evidence in this case confirms the appellant's allegations, and that of the veteran while he was alive, that he was exposed to ionizing radiation. As a coxswain and member of the Landing Boat Group of the USS Cecil, the veteran was tasked with ferrying troops, officers, and supplies into Japan. Service department records and Ship's Logs demonstrate that the veteran was within the VA- defined area of Hiroshima from October 6-9, 1945, and, therefore, part of the occupations forces within the meaning of the regulations. On the question of direct service connection, private medical records dated in 1998 show that the veteran was diagnosed with CLL. In September 1998, D.G. Blagdon, M.D., noted that the veteran had documented evidence of being on the ground at Hiroshima in Japan within probably two to three weeks of the atomic bomb blast, and had no doubt significant radiation exposure. Dr. Blagdon offered the opinion that, "[w]hether or not this has contributed to his chronic leukemia problem after this many years of course is up for debate, but certainly a consideration." After a review of all the evidence of record at the time of the veteran's death on March [redacted], 1999, the Board finds that the weight of the competent evidence of record as of March [redacted], 1999 is in relative equipoise on the question of whether the veteran's exposure to ionizing radiation in service directly caused his CLL, for the purposes of accrued benefits. Resolving reasonable doubt in the appellant's favor, the Board finds that the criteria for direct service connection for CLL, as the result of exposure to ionizing radiation in service, for the purposes of accrued benefits, have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Because the weight of the competent medical evidence establishes that the veteran's CLL was directly incurred in service, and the benefit of service connection may be granted on that basis, the Board does not need to further consider the theory of entitlement to service connection for CLL under 38 C.F.R. § 3.311 (development and VA Undersecretary for Benefits nexus opinion based on dosage estimates). Service Connection for the Cause of Death To establish service connection for the cause of the veteran's death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. See 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303, 3.310, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). 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. 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. Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. If the service-connected disability affected a vital organ, careful consideration must be given to whether the debilitating effects of the service-connected disability rendered the veteran less capable of resisting the effects of other diseases. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service- connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. 3.312; see Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). The appellant contends that the veteran was exposed to ionizing radiation in service, and that such exposure caused the CLL, which in turn caused the hemolytic crisis that led to cardiogenic shock and the veteran's death. For the reasons indicated above, the Board has found that the weight of the competent evidence is in relative equipoise on the question of whether the veteran's exposure to ionizing radiation in service caused his subsequently diagnosed CLL, and the Board has resolved reasonable doubt in the appellant's favor to establish service connection for CLL, for accrued benefits purposes. On the remaining question of whether the veteran's service- connected CLL caused or contributed substantially or materially to cause the veteran's death, the weight of the competent medical evidence establishes such causation. For example, the Certificate of Death shows that the veteran's death was due to cardiogenic shock, due to hemolytic crisis, which was, in turn, found to be due to CLL. For these reasons, the Board finds that the veteran's CLL contributed substantially or materially to cause his death, and that the criteria for service connection for the cause of the veteran's death have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for chronic lymphocytic leukemia (CLL), including as the result of exposure to ionizing radiation, for accrued benefits purposes, is granted. Service connection for the cause of the veteran's death is granted. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs