Citation Nr: 0811454 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 97-14 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chronic myelogenous leukemia secondary to occupational exposure to ionizing radiation, or, alternatively, secondary to exposure to chemicals and paints. 2. Entitlement to service connection for a gastrointestinal disorder secondary to occupational exposure to ionizing radiation, or, alternatively, secondary to exposure to chemicals and paints. 3. Entitlement to service connection for severe headaches secondary to occupational exposure to ionizing radiation, or, alternatively, secondary to exposure to chemicals and paints. 4. Entitlement to service connection for a stomach disorder with nausea secondary to occupational exposure to ionizing radiation, or, alternatively, secondary to exposure to chemicals and paints. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had active military service from December 1962 to September 1966, from July 1972 to May 1978, and from August 1979 to July 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 1996 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, denied service connection for myelogenous leukemia, hearing loss, gastrointestinal condition, severe headaches and stomach condition (nausea). In a notice of disagreement, the veteran amended his service connection claims so as to include consideration of exposure to ionizing radiation, chemicals, and paints. The Board remanded the case for development in July 1999 and again in November 2004; it is once more before the Board for appellate consideration. FINDINGS OF FACT 1. Competent evidence of exposure to ionizing radiation during active service has not been submitted; the veteran did not participate in a "radiation-risk activity." 2. Competent evidence tending to link chronic myelogenous leukemia with active service, including exposure to chemicals and paints, has not been submitted. 3. Competent evidence tending to link a stomach disorder or any other gastrointestinal disorder with active service, including exposure to chemicals and paints, has not been submitted. 4. Competent evidence tending to link severe headaches with active service, including exposure to chemicals and paints, has not been submitted. CONCLUSIONS OF LAW 1. Chronic myelogenous leukemia was not incurred in or aggravated by active military service, nor may it be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1111, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.159, 3.304, 3.307, 3.309, 3.311, 3.317 (2007). 2. A gastrointestinal disorder, including a stomach disorder with nausea, was not incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.159, 3.317 (2007). 3. A disability manifested by severe headaches was not incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.159, 3.317 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating VA benefits claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate each claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA 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 his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b) (1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that upon receipt of a service connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented 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, all elements of the claim, including notice of what is required to establish service connection and that if service connection is awarded, a disability rating and an effective date for the award will be assigned. Although the notices provided do not address either the rating criteria or effective date provisions that are pertinent to the claims, such errors are not unfairly prejudicial, given that the service connection claims will be denied below and no disability rating or effective date will be assigned. VA's duty to notify the claimant of all elements of service connection was not satisfied prior to the initial unfavorable decision by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, a timing error is cured by issuing a compliant notice followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to RO adjudication, the timing problem can be cured by a Board Remand for issuance of sufficient notice followed by readjudication of the claim); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of compliant notification followed by readjudication of the claim, such as a statement of the case (SOC) or supplemental statement of the case (SSOC), is sufficient to cure a timing defect). The Board remanded the case in November 2004. VA's duty to notify was satisfied by way of a letter sent to the claimant in December 2004 that fully addressed all four notice elements. The letter informed the claimant of what evidence was required to substantiate the claims and of the claimant's and VA's respective duties for obtaining evidence. The claimant was also asked to submit evidence and/or information in his possession. Although the notice letter was not sent before the initial RO decision, this error was not unfairly prejudicial to the claimant because the Board remanded the case in order that such notice could be accomplished. The claimant has been afforded a meaningful opportunity to participate effectively in the processing of his claims and given ample time to respond and the RO has readjudicated the claims in an SSOC issued in October 2007. For these reasons, Board adjudication is not unfairly prejudicial to the claimant, as the timing error did not affect the essential fairness of the adjudication. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held, in part, that adequate notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision. In the present case, the decision that is the basis of this appeal was decided and appealed prior to the enactment of the § 5103(a) requirements. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial decision, the RO did not err in not providing such notice. Rather, the claimant has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. In addition to providing certain notices to the claimant, VA has a duty to assist a claimant in the development of the claim. This duty includes assisting in locating service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to claims for benefits, VA must consider: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the veteran was afforded an examination to determine the nature and etiology of claimed disorders. Because all necessary development has been accomplished, Board review may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained all pertinent medical records. The veteran informed VA in October 2006 that he would submit evidence of his claimed radiation exposure. He did not do so, however. Neither the claimant nor his representative has identified and the record does not otherwise indicate that additional evidence exists. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2007). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(b), combat veterans are afforded a relaxed evidentiary standard for service connection, but, because the veteran was not in combat, he will not be afforded this consideration. Where a veteran served at least 90 days during a period of war or after December 31, 1946, and listed chronic diseases, such as leukemia and peptic ulcers, become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease will be presumed to have been incurred in service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Except as otherwise provided, VA shall pay compensation to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of this Section, provided that such disability: (i) Became manifest either during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011; and (ii) By history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. (2) For purposes of this Section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, nonmedical indicators that are capable of independent verification. (3) For purposes of this Section, disabilities that have existed for 6-months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 U.S.C.A. § 1117 (West Supp 2002); 38 C.F.R. § 3.317 (2007). Signs or symptoms which may be manifestations of undiagnosed illnesses include, but are not limited to: (1) Fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) sign or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; (13) menstrual disorders. 38 C.F.R. § 3.317(b) (2007). Compensation shall not be paid under this section if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War or if there was affirmative evidence of a supervening condition or if the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c) (2007). Service incurrence or aggravation of a disease claimed due to exposure to ionizing radiation may be presumed under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) for certain diseases, if certain requirements are met, to include the veteran's participation in a "radiation-risk activity." The term "radiation-risk activity" includes onsite participation in a test involving the atmospheric detonation of a nuclear device; occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; and, internment as a prisoner of war in Japan (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 occupation forces in Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946. 38 C.F.R. § 3.309(d) (2002). The veteran does not contend that he participated in a "radiation-risk activity." Rather, he claims exposure to ionizing radiation while serving aboard Navy vessels that might have contained radioactive materials. Of his claimed disabilities, only one of them, leukemia, is a listed radiogenic disease. 38 C.F.R. § 3.311 (b). Because a listed radiogenic disease (any form of leukemia except chronic lymphatic (lymphocytic) leukemia) is shown to have arisen in November 1995, but not within a presumptive period set forth at §§ 3.307 and 3.309, and because it is contended that the disease resulted from exposure to ionizing radiation, VA is required to obtain a dose estimate. 38 C.F.R. § 3.311(a). In July 2006, the Naval Dosimetry Center reviewed the Navy's radiation exposure registry and reported that the veteran was not listed as a radiation-exposed veteran. Navy Dosimetry Center personnel estimated that the veteran's level of exposure was sufficiently low so as to preclude the need to monitor him. The veteran has not supplied evidence of a greater dose estimate than provided by the Navy. Concerning the competence of the veteran's assertions of (1) that he was exposed to ionizing radiation, and (2) that his leukemia is the result of such exposure during active service, VA regards lay statements to be competent evidence of descriptions of symptoms of disease, disability, or injury, but not the determination of an issue involving a question of medical expertise. 38 C.F.R. § 3.159; Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); but see Jandreau v. Nicholson, 492 F.3d. 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional); See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence. In this case, there is no competent evidence of radiation exposure, thus, there is no basis to grant presumptive service connection for chronic myelogenous leukemia secondary to claimed exposure to radiation. The question of direct service connection for chronic myelogenous leukemia due to claimed exposure to other toxic substances during active service was posed to a VA medical doctor who conducted the March 2007 VA compensation examination. The physician noted that neither lymphocytic leukemia nor any other lymphatic disorder was shown, which precludes presumptive service connection for claims arising from herbicide exposure in Vietnam (the veteran had "blue- water" service off the coast of Vietnam). 38 C.F.R. § 3.309 (e). The physician also noted that the veteran could not identify a specific chemical or pathogen to which he might have been exposed during active service. The physician concluded, "Chronic myelogenous leukemia is not likely caused by any documentable toxic exposure either to chemicals or to ionizing radiation, or to pathogenic biological organisms in the military." The physician reviewed the service medical records (SMRs) and found no basis to attribute chronic myelogenous leukemia to active service. Concerning service connection for gastrointestinal and/or stomach disturbances and a claimed chronic severe headache condition, the physician found no evidence of chronic symptoms of any of these claimed disorders. The veteran reported only rare frontal headaches. The only gastrointestinal symptom shown was indigestion, which the physician attributed to multiple medications for leukemia, including bone marrow graft. The physician noted that bone marrow graft complications can include dry eyes, dry mouth, and mucositis of the tongue and oral cavity and urinary tract. No other stomach or gastrointestinal disorder was found nor did the veteran complain of such symptoms. The physician felt that the veteran's infrequent headaches were not associated with any event during active service nor were they attributed to a known diagnosis. This raises the question of service connection for an undiagnosed illness, however. Because the veteran served in the Southwest Asia theatre during the Persian Gulf War era, presumptive service connection is available for chronic unexplained illness, including headaches, not attributable to a known diagnosis. The veteran's headaches, however, reportedly occurred so infrequently that they failed to meet the 6-months or longer chronicity requirement to qualify as a chronic undiagnosed illness under 38 C.F.R. § 3.317. For lack of any other health complaint, the physician concluded, "There are no undiagnosed conditions as a result of him serving on an aircraft carrier in the Red Sea during the first Gulf War." After considering all the evidence of record, the Board finds that the preponderance of it is against each service connection claim. Because the preponderance of the evidence is against each claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for chronic myelogenous leukemia, for a gastrointestinal disorder, for severe headaches, and for a stomach disorder with nausea, all claimed secondary to occupational exposure to ionizing radiation or to exposure to chemicals and paints, is therefore denied. ORDER Service connection for chronic myelogenous leukemia secondary to exposure to ionizing radiation or secondary to exposure to chemicals and paints is denied. Service connection for a gastrointestinal disorder secondary to exposure to ionizing radiation or secondary to exposure to chemicals and paints is denied. Service connection for severe headaches secondary to exposure to ionizing radiation or secondary to exposure to chemicals and paints is denied. Service connection for a stomach disorder with nausea secondary to exposure to ionizing radiation or secondary to exposure to chemicals and paints is denied. ______________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs