Citation Nr: 0811632 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 04-03 400A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana 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 Paul S. Rubin, Associate Counsel INTRODUCTION The veteran had active military service from September 1941 to March 1946 and from August 1948 to July 1971. He died in February 2002 at the age of 82. The appellant is his widow (surviving spouse). She appealed to the Board of Veterans' Appeals (Board) from a September 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In March 2008, the Board advanced this case on the docket. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). Regrettably, though, since the claim must be further developed before deciding the appeal, the Board is remanding this case to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Dependency and Indemnity Compensation (DIC) may be awarded to a surviving spouse upon the service-connected death of the veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a); see also 38 U.S.C.A. Chapter 11. Generally, a veteran's death is service connected if it resulted from disability incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 101(16), 1110, 1131; 38 C.F.R. §§ 3.1(k), 3.303. Service connection may be established either by showing direct service incurrence or aggravation, or by use of applicable presumptions, if available. 38 C.F.R. § 3.303(a); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As to presumptive service connection, some diseases are chronic, per se, such as malignant tumors, and therefore will be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. VA considers the veteran's death as due to a service- connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 C.F.R. § 3.312(a). A principal (primary) cause of death is one that singly or jointly with some other condition was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially to death, hastened it, or aided or lent assistance to death. 38 C.F.R. § 3.312(c). There are primary causes of death that, 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, itself, of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In this particular case at hand, records show the veteran died in February 2002 from metastatic lung cancer. At the time of his death, he had several service-connected disabilities: coronary artery disease - rated as 30 percent disabling; a low back disorder - rated as 20 percent disabling; a conversion reaction manifested by dysgraphia - rated as 10 percent disabling; diverticulitis - rated as 10 percent disabling; and hearing loss - also rated as 10 percent disabling. The cause of the veteran's death listed on his death certificate, metastatic lung cancer, was not a service-connected condition when he died. The appellant-widow asserts that the veteran's terminal metastatic lung cancer should be service connected as the cause of his death due to his alleged exposure to ionizing radiation during service. She contends he was exposed to ionizing radiation during service as the result of: (1) atmospheric nuclear tests conducted at Los Alamos, New Mexico, in 1949 and (2) his duties over an extended period of time during service from his involvement in the research, testing, and handling of nuclear material in the laboratory and the subsequent deployment of nuclear weapons including missiles. See Dr. M.G. private treatment report dated in March 2002; notice of disagreement (NOD) dated in December 2002; and substantive appeal (VA Form 9) dated in February 2004. Before addressing the merits of the DIC claim at issue, however, the record must be further developed. First, with regards to the Veterans Claims Assistance Act of 2000 (VCAA), the notice letters sent by the RO to the appellant in March 2002 and November 2004 are not sufficient. Specifically, neither letter complies with the U. S. Court of Appeals for Veterans Claims' (Court's) recent decision in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007), which held that for DIC benefits, VCAA notice must include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. In this regard, the appellant's cause-of-death claim for the fatal lung cancer (which, as mentioned, was not service connected) is based on the veteran's alleged exposure to ionizing radiation during service. Both VCAA letters also fail to address the unique evidentiary requirements for radiation claims. So a remand is required to correct this procedural due process deficiency. As well, this letter must comply with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), insofar as notifying the appellant- widow of all elements of her claim, including concerning the downstream effective date. Second, in June 2002, the RO sent a letter to the U.S. Department of Energy's Coordination and Information Center requesting information concerning the veteran's alleged radiation exposure due to his possible assignment during service to the Atomic Energy Commission's bomb assembly program. But no response from this particular branch of the Department of Energy was ever received. So the AMC should once again attempt to obtain a response from this agency. Third, records show the RO obtained the veteran's service personnel records (SPRs) from the National Personnel Records Center (NPRC), a military records repository in St. Louis, Missouri. However, the veteran's Officer Military Record, AF Form 11, appears to be incomplete. Specifically, page two of this record indicates that it should "continue on attached sheet." Yet, there is no other additional sheet of record. When VA attempts to obtain records from a Federal department or agency, the efforts to obtain these records must continue until the records are obtained unless it is reasonably certain the records do not exist or that further efforts to obtain them would be futile. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2), (c)(3). The standard for VA is very high. Therefore, there needs to be a specific determination of whether there are any additional SPRs and, if there are not, this needs to be expressly indicated in the record and the appellant-widow appropriately notified. Fourth, and most importantly, the AMC must undertake further development and procedural actions for the lung cancer cause- of-death claim as the result of ionizing radiation, as outlined in 38 C.F.R. § 3.311. Concerning this, service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by several different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, presumptive service connection under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) is warranted for certain diseases present in "radiation-exposed veterans." Second, a "radiogenic disease" may be service- connected on a direct basis after specified developmental procedures are conducted under the framework of 38 C.F.R. § 3.311. Third, even if the claimed disability is not listed as a presumptive disease under 38 C.F.R. § 3.309(d) or as a radiogenic disease under 38 C.F.R. § 3.311, direct service connection must still be considered by way of in-service incurrence or aggravation therein, including presumptive service connection for chronic diseases. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 38 C.F.R. § 3.309 presumptively permits service connection for certain cancer types, including lung cancer as demonstrated here, for "radiation-exposed" veterans. 38 C.F.R. § 3.309(d)(2). However, a "radiation-exposed veteran" is defined as a veteran who was involved in a "radiation-risk activity" during military service. Regulations define "radiation-risk activities" to include: participation at atmospheric nuclear tests; participation in the occupation of Hiroshima or Nagasaki, Japan during specific periods of time; and service at specific nuclear weapons production facilities. 38 C.F.R. §§ 3.309(d)(3). In this case, the evidence of record clearly shows the veteran did not engage in a "radiation-risk activity" as defined by 38 C.F.R. § 3.309(d). The appellant-widow asserts the veteran was exposed to ionizing radiation during service as the result of atmospheric nuclear tests conducted at Los Alamos, New Mexico, in 1949. The veteran's service records do confirm he was present at Los Alamos in 1949. However, the Defense Threat Reduction Agency (DTRA) indicated in August 2002 correspondence that no atmospheric nuclear tests for the U.S. military were conducted anywhere in 1949. It was possible the veteran may have participated in a nuclear simulation exercise at Los Alamos in 1949, but any detonation at such an event was non-nuclear, with no potential for radiation exposure. The only atmospheric nuclear test conducted at Los Alamos was in 1945 for Project TRINITY. In this regard, SPRs reveal the veteran was not present at Los Alamos in 1945, negating that possibility. In addition, the Department of Energy confirmed in July 2002 that no nuclear weapons testing records were located for the veteran. Finally, the NPRC indicated in May 2002 that the veteran did not have a DD Form 1141 (Record of Occupational Exposure to Ionizing Radiation). In sum, and as acknowledged by the veteran's representative on pages 3-4 of the October 2007 Appellant's Brief, presumptive service connection for alleged ionizing radiation exposure is not warranted here by way of the provisions of 38 C.F.R. § 3.309(d) That notwithstanding, further development and procedural actions are still warranted as outlined in 38 C.F.R. § 3.311. In this regard, 38 C.F.R. § 3.311 does not provide presumptive service connection for radiogenic disease but provides special procedures to help a veteran or his survivors prove his or her claim on a direct basis. Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). The governing regulation states that, in all claims in which it is established that a "radiogenic disease" first became manifest after service within a certain time frame for that disease, and it is contended that the disease resulted from ionizing radiation exposure, a dose assessment will be made. 38 C.F.R. § 3.311(a)(2). Here, the veteran's documented lung cancer is considered a "radiogenic disease," as listed under 38 C.F.R. § 3.311(b)(2)(iv), and manifested here over 5 years after the alleged exposure to ionizing radiation during service pursuant to 38 C.F.R. 3.311(b)(5). Therefore, as it is contended his terminal lung cancer resulted from ionizing radiation exposure, to properly develop this claim under 38 C.F.R. § 3.311, an assessment must be made as to the size and nature of any radiation dose requested from the Under Secretary for Health, as opposed to the Department of Defense. See 38 C.F.R. § 3.311(a)(2)(iii). This is because, here, there is clear evidence of record against participation in atmospheric nuclear tests at Los Alamos or the occupation of Hiroshima and Nagasaki. However, there is some evidence of "other exposure" to ionizing radiation during service as the result of the veteran's duties over an extended period of time from involvement in the research, testing, and handling of nuclear material in the laboratory and the subsequent deployment of nuclear weapons including missiles. See August 1951 SMR Report of Medical Examination when the veteran indicated he had worked with radioactive substances of a classified nature; the report of his January 1971 military retirement examination when he indicated he had worked with the Atomic Energy Commission's bomb assembly program; his SPRs confirming his duties as a nuclear weapons officer and a missile maintenance officer from June 1959 to January 1966; and his SPR's confirming his participation in the Armed Forces Special Weapons Project (AFSWP) in 1949. Despite this evidence, the RO did not send any request of record to the Under Secretary for Health as required by 38 C.F.R. § 3.311(a)(2)(iii). Thus, the AMC must do this before the Board decides the appeal. For purposes of making this determination, it is assumed the veteran is credible in asserting his involvement with these programs. See 38 C.F.R. § 3.311(a)(4)(i). Depending on the result of the dose assessment, the AMC should refer the claim to the Under Secretary for Benefits for further consideration, including an opinion, if appropriate. See 38 C.F.R. § 3.311(b)(1)(iii). Accordingly, this case is REMANDED for the following development and consideration: 1. Send the appellant-widow another VCAA notice letter for her DIC claim at issue, which complies with the Court's recent decision in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). More specifically, this additional VCAA notice must include: (1) a statement of the conditions for which the veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim, as here, based on a condition not yet service connected. Further, this letter should address the unique evidentiary requirements for radiation claims. First, it should explain that presumptive service connection under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) is warranted for certain diseases present in "radiation-exposed veterans." Second, it should explain that a "radiogenic disease" may be service connected on a direct basis after specified developmental procedures are conducted under the framework of 38 C.F.R. § 3.311. Third, it should explain that, even if the claimed disability is not listed as a presumptive disease under 38 C.F.R. § 3.309(d) or as a radiogenic disease under 38 C.F.R. § 3.311, direct service connection must still be considered by way of in-service incurrence or aggravation therein, including presumptive service connection for certain chronic diseases, such as malignant tumors. In addition, this letter must comply with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), in terms of apprising the appellant-widow of all elements of her claim, including the downstream effective date element. 2. Follow-up on the previous June 2002 attempt to obtain a response from the U.S. Department of Energy's Coordination and Information Center requesting information on the veteran's alleged radiation exposure due to his possible assignment to the Atomic Energy Commission's bomb assembly program during service. If no additional records are forthcoming, make this express declaration in the record and appropriately notify the appellant-widow. 3. Contact the NPRC and request any additional missing SPRs, specifically, an additional sheet for the veteran's AF Form 11, Officer Military Record, which appears to be incomplete. If no further SPRs are available, a negative reply to that effect is required. 4. Obtain an assessment from the Under Secretary for Health as required under 38 C.F.R. § 3.311(a)(2)(iii) as to the size and nature of the radiation dose due to veteran's assertions of exposure to ionizing radiation during service as the result of his duties over an extended period of time from involvement in the research, testing, and handling of nuclear material in the laboratory and the subsequent deployment of nuclear weapons including missiles. Advise the Under Secretary for Health as to the following evidence of record: an August 1951 SMR Report of Medical Examination in which veteran indicated he had worked with radioactive substances of a classified nature; the report of his January 1971 military retirement examination when he indicated he had worked with the Atomic Energy Commission's bomb assembly program; his SPRs confirming his duties as a nuclear weapons officer and a missile maintenance officer from June 1959 to January 1966; and his SPR's confirming his participation in the Armed Forces Special Weapons Project (AFSWP) in 1949. For purposes of making this dose determination, it is assumed he is credible in asserting his involvement with these programs. See 38 C.F.R. § 3.311(a)(4)(i). Then, depending on the result of the dose assessment, refer the claim to the Under Secretary for Benefits for further consideration, including an opinion, if appropriate. See 38 C.F.R. § 3.311(b)(1)(iii). 5. Upon completion of this additional development, and in light of any additional evidence received, readjudicate the DIC claim at issue. If the claim is not granted to the appellant's satisfaction, send her and her representative a supplemental statement of the case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument concerning the claim the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).