Citation Nr: 1048198 Decision Date: 12/28/10 Archive Date: 01/03/11 DOCKET NO. 10-25 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran was on active duty in the United States Navy from May 1944 to March 1946. He passed away in March 2007; at the time of his death, he was not in receipt of VA compensation benefits. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Immediately following World War II, the Veteran was onboard a United States warship that was present in the Nagasaki and Hiroshima areas of the Empire of Japan. 2. Prior to his death, the Veteran was diagnosed as suffering from cancer of the lung, which is a presumptive disability. 3. The Veteran died in March 2007; the Certificate of Death listed the cause of the Veteran's death to be lung cancer. CONCLUSIONS OF LAW A disability incurred in or aggravated by service, or which may be presumed service connected, did proximately cause or contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). 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 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); 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; and (3) that the claimant should provide 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); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant proceeding with these issues given the favorable nature of the Board's decision with regard to the issue of service connection for the cause of the Veteran's death and the granting of dependency and indemnity compensation (DIC) benefits. The record indicates that the Veteran was in the United States Navy during and after World War II. He was assigned to the USS Biloxi (CL-80). After the ending of the hostilities, the USS Biloxi proceeded to Nagasaki and the waters offshore of Hiroshima. While ported in Nagasaki, the USS Biloxi assisted in the evacuation of prisoners-of-war and it was also a witness to the damage caused by the atomic bomb that had been dropped on Nagasaki. At the end of 1945, the USS Biloxi steamed back to CONUS. The Veteran was subsequently discharged from the Navy in March 1946. Sixty-one years later, the Veteran passed away. Per the Certificate of Death, the Veteran died as a result of cancer of the lungs. Chronic lymphocytic leukemia was listed as a significant factor contributing to his death. An autopsy was not performed. At the time of his death, the Veteran was not in receipt of VA compensation or pension benefits nor did he have a claim before the VA. The surviving spouse of a veteran who has died of a service- connected or compensable disability may be entitled to receive dependency and indemnity compensation. 38 U.S.C.A. § 1310 (West 2002); Wray v. Brown, 7 Vet. App. 488 (1995). The death of the veteran will be considered as having been due to a service- connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2010). The appellant will be entitled to service connection for the cause of death if it is shown that the service-connected disabilities contributed substantially or materially to cause death; that they combined to cause death; or that they aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c)(1) (2010). However, service-connected disabilities of a static nature involving muscular or skeletal functions and not materially affecting other vital body functions will not be held to have contributed to death resulting primarily from some other cause. 38 C.F.R. § 3.312(c)(2) (2010). The standards and criteria for determining whether or not a disability from which a veteran has died is service connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the veteran is still alive. 38 U.S.C.A. § 1310 (West 2002). Additionally, in Galvagno v. Derwinski, 3 Vet. App. 118, 119 (1992), the United States Court of Appeals for Veterans Claims, hereinafter the Court, stated the following: Further, in cases where the primary cause of death is so "overwhelming" that death would have resulted regardless of the existence of a service-connected disability, a service-connected condition may be found to be a contributory cause of death where that condition has had a "material influence in accelerating death" because it "affected a vital organ and was of itself progressive or debilitating [in] nature". Service connection may be established for a current disability in several ways including on a direct basis. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(a), 3.304 (2010). Direct service connection may be established for a current disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (2010). Establishing direct service connection for a disability which has not been clearly shown in service requires evidence sufficient to show (1) the existence of a current disability; (2) the existence of a disease or injury in service; and, (3) a relationship or connection between the current disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(d) (2010); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In addition, a disability which is proximately due to or the result of a service-connected disease or injury shall be service- connected. 38 C.F.R. § 3.310 (2010). The Court has held that when aggravation of a Veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service-connected. Allen v. Brown, 7 Vet. App. 439, 446 (1995). Moreover, service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Watson v. Brown, 4 Vet. App. 309, 314 (1993). Presumptive service connection can also be established for on the basis of exposure to certain toxins, chemicals, or radiation. Some specific types of cancer warrant service connection if a veteran qualifies as a "radiation-exposed veteran." 38 U.S.C.A. § 1112(c) (West 2002); 38 C.F.R. § 3.309(d) (2010). Also "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311 (2010). Service connection based upon exposure to radiation can be awarded on three different legal bases. The first basis is a presumptive basis for diseases specific to radiation exposed veterans under 38 C.F.R. § 3.309(d) (2010). The second basis is based on exposure to ionizing radiation with the subsequent development of a radiogenic disease under 38 C.F.R. § 3.311 (2010). Finally, the veteran is entitled to service connection if he can establish that a disability warrants service connection as defined by the general laws and regulations governing VA compensation entitlement, that is on a direct or presumptive basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). VA regulations specify twenty-one types of cancer that warrant presumptive service connected if they become manifest in a "radiation-exposed veteran" within specified periods of time. 38 U.S.C.A. § 1112(c) (West 2002); 38 C.F.R. § 3.309(d)(2) (2010). The record reflects that the Veteran was involved in the occupation of Hiroshima or Nagasaki, the Empire of Japan "during the period beginning on August 6, 1945 and ending on July 1, 1946". 38 C.F.R. § 3.309(d)(3)(2010). In previously adjudicated actions, the VA, along with the Defense Special Weapons Agency, has acknowledged that the Veteran was in a location, during a specific time, where he was exposed to less than 1 rem of ionizing radiation as a result of the atomic bombing of Nagasaki and Hiroshima. As such, the Veteran is considered a "radiation exposed veteran" within the meaning of the applicable regulations. As previously reported, the Veteran died as a result of cancer of the lung. Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 C.F.R. § 3.309(d)(2) (2010) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gallbladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. The Veteran's cause of death, that of lung cancer, is a presumptive disease for radiation-exposed veterans. In other words, the presumptive provisions of 38 C.F.R. § 3.309(d) (2010) do apply. The Veteran's attending physician indicated the primary cause of death was lung cancer. Although the Veteran had asbestos-related lung disease, the evidence is insufficient to rebut the presumption that the Veteran's lung cancer was due to radiation in service pursuant to 38 C.F.R. § 3.307(d). Moreover, the Veteran filed a claim years before his death asserting that he had asbestosis as a result of his duties in the boiler room on the USS Biloxi while he was in the Navy. That claim was denied because asbestosis was not shown by the evidence of record in a December 1997 rating decision. However, it is likely that the Veteran was exposed to asbestos as a result of those duties. Nevertheless, after affording the appellant the benefit-of-the- doubt, the Board finds that the Veteran engaged in official military duties within 10 miles of the city limits of Nagasaki and Hiroshima, the Empire of Japan, which were required to support military occupation functions. Given such finding, it follows that the Veteran was involved in the occupation of Nagasaki during 1945, and thus, participated in a "radiation- risk activity" and, accordingly, is a "radiation-exposed veteran." Moreover, in the absence of affirmative evidence of an intercurrent cause for cancer of the lung, the criteria for service connection for lung cancer, as presumptively due to exposure to ionizing radiation, have been met. The benefit sought on appeal is granted. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs