Citation Nr: 1132591	
Decision Date: 09/02/11    Archive Date: 09/12/11

DOCKET NO.  02-00 572	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to service connection for a thyroid disorder, claimed as due to ionizing radiation, for the purpose of accrued benefits.

2.  Entitlement to service connection for a pulmonary disorder, claimed as due to ionizing radiation, for the purpose of accrued benefits.

3.  Entitlement to service connection for a left eye growth, claimed as due to ionizing radiation, for the purpose of accrued benefits.


WITNESSES AT HEARING ON APPEAL

The Veteran; the appellant; the Veteran's and appellant's daughter


ATTORNEY FOR THE BOARD

Stephanie L. Caucutt, Counsel


INTRODUCTION

The Veteran served on active duty from April 1944 to June 1946.  He passed away in October 2010.  The appellant is his surviving spouse.  

Prior to his death, in February 2002, the Veteran testified before a Decision Review Officer (DRO).  A transcript of that hearing is associated with the claims file.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2000 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Milwaukee, Wisconsin.  Prior to his death, the Veteran had perfected an appeal to the Board which included the claims listed above.  In September 2006, the Board denied entitlement to service connection for these issues and the Veteran subsequently appealed to the Court of Appeals for Veterans Claims (Court).  In a May 2008 Joint Motion for Remand, the parties (the Secretary of VA and the Veteran) determined that a remand was warranted.  By a June 2008 Order, the Court granted the Joint Motion for Remand, vacated the September 2006 Board decision, and remanded the matter for readjudication.  

Thereafter, in January 2010, the Board remanded the issues on appeal for additional evidentiary and procedural development.  The case was returned to the Board in October 2010; unfortunately, the Veteran passed away before a decision could be made regarding his appeal.  As such, the Board dismissed the appeal, noting that its actions did not affect any derivative claim brought by a survivor of the Veteran.  Following the Veteran's death and the Board's dismissal, the appellant filed a claim for Dependency and Indemnity Compensation (DIC), death pension, and accrued benefits that was received by the RO in October 2010.  Her claims were administratively denied by a letter dated in May 2011.  

During the pendency of the Veteran's appeal, Congress enacted the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating a new 38 U.S.C. § 5121A allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008).  This change in law permits an eligible person to process any pending claims when a Veteran dies to completion.  Such request must be filed not later than one year after the date of the Veteran's death and, as provided for in this new provision, a person eligible for this substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title . . . ."  Id.; 38 U.S.C.A. § 5121A (West 2002).  

Significantly, less than one week after the May 2011 administrative denial of the appellant's death benefit claims, the appellant contacted the RO and requested that she be substituted as the claimant in the Veteran's appeal that was previously pending before the Board.  The RO thereafter determined that the appellant could properly be substituted as the claimant in the pending appeal and, as such, issued a supplemental statement of the case as to the issues of whether service connection is warranted for a thyroid disorder, pulmonary disorder, or left eye growth, for the purpose of accrued benefits.  As these claims remained denied, the case was returned to the Board for an appellate determination.  

The Board has reviewed the record and concludes that current circumstances require additional remand prior to appellate review of the issues of entitlement to service connection for a thyroid disorder and a pulmonary disorder.  As such, they are addressed in the REMAND portion of the decision below and are 
REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  


FINDINGS OF FACT

1.  The competent and credible evidence is in relative equipoise as to whether the Veteran was stationed at the Hanford Nuclear Reservation during service and was therefore exposed to ionizing radiation during service.

2.  The competent medical evidence is in relative equipoise as to whether the Veteran's posterior subcapsular cataract of the left eye was the result of exposure to ionizing radiation during service.  


CONCLUSION OF LAW

Posterior subcapsular cataract of the left eye was incurred during active military service as a result of exposure to ionizing radiation.  38 U.S.C.A. §§ 1110, 1112, 5107, 5121A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.1000 (2010); Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a 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, 3.326(a) (2010).  With respect to the issue of entitlement to service connection for posterior subcapsular cataract of the left eye, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.  

Legal Criteria and Analysis

As noted in the Introduction above, the Veteran, at the time of his death, had a pending claim of entitlement to service connection for a left eye growth.  The RO has determined that the appellant, under the amended law (i.e., 38 U.S.C.A. § 5121A), may be substituted in his place for purposes of completing this claim.  The Board has reviewed the evidence of record and, for the reasons discussed immediately below, concludes that service connection is warranted for posterior subcapsular cataract of the left eye.  Accordingly, the appellant is entitled to compensation benefits - namely, accrued benefits - consistent with the provisions of 38 U.S.C.A. §§ 5121 and 5121A (West 2002 & Supp. 2010).  See also Breedlove v. Shinseki, 24 Vet. App. 7, 20 (2010); 38 C.F.R. § 3.1000 (2010).  

Medical evidence of record reflects that the Veteran notified the VA at an April 2002 primary care visit that a private eye doctor had informed him that he had the "beginnings" of cataracts in December 2001.  Thereafter, he was seen by ophthalmology in August 2002 and diagnosed with mild cataracts in both eyes.  A VA eye examination dated in April 2010 confirmed that the Veteran had a posterior subcapsular cataract in his left eye.  It was the Veteran's contention that his left eye cataract (also claimed as left eye growth) is the result of exposure to ionizing radiation which occurred during his period of military service.  

Service connection for disorders claimed to be due to exposure to ionizing radiation in service can be established in a number of different ways.  See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997).  First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d).  Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a "radiogenic disease."  Third, direct service connection can be established under 38 C.F.R. § 3.303 by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions or special procedures.  See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).  

With regards to the various theories of entitlement as described above, the Board observes that posterior subcapsular cataract is not listed as a disease entitled to presumptive service connection under 38 C.F.R. § 3.309(d).  See also 38 U.S.C.A. § 1112(c) (West 2002 & Supp. 2010).  As such, the Board need not consider whether presumptive service connection based on ionizing radiation exposure is warranted.  Posterior subcapsular cataract is, however, considered a "radiogenic disease" for purposes of VA disability compensation benefits.  C.F.R. § 3.311(b)(2)(xvi) (2010).  As such, the special development procedures provided in 38 C.F.R. § 3.311 apply as long as there is evidence that the Veteran was exposed to ionizing radiation during service.  

VA regulations have defined certain circumstances in which a veteran will be presumed to have been exposed to ionizing radiation.  See 38 C.F.R. § 3.309(d)(3) (2010).  Pertinent to the current determination, the Veteran's claimed exposure does not fall into any of the categories defined as a "radiation-exposed veteran."  See id.  Service connection for a disability due to ionizing radiation exposure does not, however, require that a veteran be a "radiation-exposed veteran."  Rather, to establish service connection under 38 C.F.R. § 3.303 there need only be sufficient evidence of exposure to ionizing radiation during service (as well as some link between a current disability and such exposure).  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  As discussed in more detail below, the Board finds that the Veteran was exposed to ionizing radiation during his period of active duty service.  

Throughout this appeal, the Veteran submitted written statements and oral testimony that he served as a Military Policeman (MP) at the Hanford Nuclear Reservation (Hanford) in Washington state shortly before his separation from active duty service in June 1946.  According to the Veteran, he was sent to Hanford from Fort Belvoir, Virginia, on secret orders with eleven other men from his combat engineering battalion.  In support of his claim, he submitted a typewritten photocopy of Home Spun News from Elm Grove, Wisconsin, for January/February 1946 which reported that he was an MP stationed at Richland, Washington.  He included a map showing the close proximity between the Hanford Military Reservation, Washington, and Richland, Washington.  

Also of record are February 2002 statements from A.M., J.P., and the appellant.  A.M. indicated that he had known the Veteran his whole life and the Veteran had been sent to Hanford, Washington, to guard the making of the atomic bomb on secret orders in 1945-46.  A.M. stated that the Veteran had not been the same since being exposed to radiation in that he gagged and cleared his throat.  J.P. indicated that he went to grade school with the Veteran, but met him again in 1945 and 1946 at Fort Lewis, Washington.  At that time, the Veteran had been traveling "from Hanford[,] Washington[,] after making the Atomic Bomb to Fort Lewis[,] Washington[,] to be discharged."  Finally, the appellant stated that she had known the Veteran since 1947 and he always had a gravelly voice and was constantly bringing up sputum.  She indicated that when they first met they discussed his World War II service at Fort Belvoir, Fort Lewis, and Hanford, guarding the atomic bomb plant.  In April 2006, a statement from an individual named J.D. indicated that he worked as a billposter with the Veteran from 1960 to 1988 and that the Veteran told him that had served as an MP guarding the making of the atomic bomb in 1945-46 under the command of General Groves.

Despite the Veteran's contentions, the record does not contain any information which expressly indicates that he was stationed at Hanford; there is also no affirmative evidence documenting exposure to ionizing radiation.  Nevertheless, the Board acknowledges that the document entitled Hanford Individual Dose Assessment Project clearly shows that iodine 131 (which emits ionizing radiation) was released to the air by the Hanford Nuclear Reservation from December 26, 1944, to December 31, 1957.  Thus, if the Board determines that the evidence reflects that the Veteran served at Hanford sometime during this period, exposure to ionizing radiation will be conceded.  See 38 U.S.C.A. § 1154(a) (West 2002).

Pertinent to this appeal, the record contains a July 2005 letter from the National Archives and Records Administration (NARA) which states that a search of records associated with the unit listed on the Veteran's separation document, the 1293d Engineer Combat Battalion, produced previously-classified documentation requesting permission for a representative of the Manhattan Engineer District to interview enlisted men at Fort Belvoir.  The enclosed documentation, dated in March 1945, reflects that interviews were to be conducted with members of the Veteran's unit to fill personnel needs.  Unfortunately, a list of men transferred to the Manhattan Engineer District from Fort Belvoir was not located.  

Also of record is July 2005 letter from the U.S. Army Corps of Engineers Office of History.  This letter indicates that the 1293d Engineer Combat Battalion was activated on June 26, 1944, and inactivated at Fort Belvoir on October 18, 1945.  Finally, a separation qualification record submitted by the Veteran in December 2006 reflects that he served for two months as an MP and was separated at Fort Lewis, Washington.  

Despite the fact that none of the above evidence expressly verifies the Veteran's presence at Hanford, the Board is of the opinion that, when viewed in its entirety, the record is, at the very least, in equipoise as to the issue of whether the Veteran served at Hanford and was therefore exposed to ionizing radiation during service.  The Veteran was consistent throughout this appeal in his assertions regarding his service at Hanford.  Thus, with consideration of the supporting lay statements of record, evidence that he served as an MP for two months, evidence that the Manhattan Project interviewed enlisted personnel while the Veteran was stationed at Fort Belvoir, and evidence indicating that he was separated in Washington state, the Board will afford all reasonable doubt in favor of the appellant and conclude that the record establishes that the Veteran served at Hanford for at least two months sometime between October 1945 and June 1946.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010).

Evidence of radiation exposure, by itself, however, is not sufficient to award service connection.  Rather, there must be some indication that the Veteran's posterior subcapsular cataract of the left eye is somehow related to in-service exposure to ionizing radiation.  See Shedden, 381 F.3d at 1167; 38 C.F.R. § 3.303(d).  In the instant appeal, the VA undertook special development as described in 38 C.F.R. § 3.311 to aid in its determination because the Veteran was exposed to ionizing radiation during service and posterior subcapsular cataract qualifies as a "radiogenic disease."  Such development included requesting the preparation of a dose estimate and an advisory opinion from the Under Secretary for Health.  See 38 C.F.R. § 3.311.  

This claim was referred to the Director of Radiation and Physical Exposures (Director) for such information.  In the June 2010 report, the Director estimated the Veteran's highest total radiation dose for his entire period of service to be no more than 1.15 rem.  This dose estimate was created using data from a 1994 report published by the Hanford Environmental Dose Reconstruction Project and information about the Veteran.  Based on this dose estimate, the Director concluded that "it is unlikely that the Veteran's . . . posterior subcapsular cataract . . . can be attributed to ionizing radiation exposure while in military service."  In support of her opinion, the Director cited a 2007 study entitled "Cataracts among Chernobyl clean-up workers: implications regarding permissible eye exposures," which found the maximum likelihood dose threshold for Stage I posterior subcapsular cataracts was 35 rad with a 95 percent confidence interval of 19 to 66 rad.  

The above opinion would appear to indicate that the Veteran's posterior subcapsular cataract of the left eye was not the result of ionizing radiation exposure during service.  However, the record also contains an ophthalmologist's opinion dated in April 2010 that the Veteran's posterior subcapsular cataract of the left eye was "at least as likely as not" due to radiation exposure experienced during service.  The April 2010 examination report indicates that this opinion was provided following an examination of the Veteran and a review of the entire record, including an individual dose estimate provided to the Veteran by the Hanford Individual Dose Assessment Project in December 1999.  This individual dose estimate was also prepared using data from the Hanford Environmental Dose Reconstruction Project, as well as information provided by the Veteran, including his dates of service at Hanford Military Reservation.  In contrast to the dose estimate provided by the Director, the Hanford Individual Dose Assessment Project estimated the Veteran's iodine 131 thyroid dose estimate ranged from 2,100 millirad (or approximately 2.1 rem) to 20,400 millirad (or approximately 20.4 rem), with a median dose estimate of 7,900 millirad (or approximately 7.9 rem).  The Board acknowledges that the examining ophthalmologist does not make specific reference to the dose estimate contained in the December 1999 report.  However, it is clear from the examination report that the physician was aware of both the type and duration of the Veteran's exposure (I-131 exposure through the air for at least a two-month period).  Moreover, the fact that the opinion pertains to an eye disease and is provided by an ophthalmologist more than compensates, in the Board's opinion, for any need for specialization in the area of the biological effects of radiation.  See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995).  

The Board observes that the Director who authored the June 2010 report had an opportunity to review and comment on both the April 2010 opinion provided by the ophthalmologist and the December 1999 dose estimate provided by the Hanford Individual Dose Assessment Project, but failed to do so.  Therefore, with consideration of the fact the April 2010 opinion was provided by an eye specialist and absent any indication that the April 2010 opinion is either not supported by clinical evidence or that the radiation dose information that it is based upon is factually inaccurate, the Board will afford it equally significant probative value as the June 2010 report.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993).  

In light of the above circumstances, there appears to be an approximate balance of positive and negative evidence as to the issue of whether the Veteran's posterior subcapsular cataract of the left eye was related to ionizing radiation exposure during service.  Affording all reasonable doubt in favor of the appellant, the Board finds that service connection should therefore be granted.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  


ORDER

Service connection is granted for posterior subcapsular cataract of the left eye, for the purpose of accrued benefits.  


REMAND

Historically, a determination regarding whether a veteran's surviving spouse was entitled to accrued benefits for a claim pending at the time of a veteran's death was limited to the evidence in the file at the date of the veteran's death.  See 38 U.S.C.A. § 5121(a); Ralston v. West, 13 Vet. App. 108, 113 (1999); 38 C.F.R. § 3.1000(a).  However, under the newly-enacted 38 U.S.C.A. § 5121A, when a properly qualified substitute claimant continues the pending claim in the footsteps of a veteran after his demise, additional development of the record may be undertaken if that is deemed appropriate and/or necessary in order to adequately adjudicate the merits of the claim.  In other words, a substitute claimant may submit additional evidence in support of the claim, and, similarly, VA is responsible for obtaining any additional evidence required and addressing notice or due process defects in the same manner as if the original claimant were still alive.  Unlike prior accrued benefits claims, the record is not closed on the date of death of the original claimant, but rather, it remains open for the submission and development of any pertinent additional evidence.  

As discussed in the above decision, the Board remanded this appeal in January 2010 such that the Agency of Original Jurisdiction (AOJ) could apply the special development procedures provided in 38 C.F.R. § 3.311 to the Veteran's claims for service connection for a left eye growth, a thyroid disorder, and a pulmonary disorder.  With regard to the latter two issues, the Board finds that additional development is needed because, as opposed to the issue of service connection for a left eye growth, the only competent and probative medical evidence regarding the issue of whether the Veteran's non-malignant thyroid nodules, mild chronic obstructive pulmonary disease (COPD), or chronic scarring of the lungs was related to ionizing radiation exposure is the June 2010 report from the Director of Radiation and Physical Exposures (Director).  

As noted above, the Director concluded that the Veteran's total ionizing radiation exposure during service was no more than 1.15 rem.  This dose estimate was prepared using data from the Hanford Environmental Dose Reconstruction Project as well as information about the Veteran and his time at Hanford Nuclear Reservation.  It was then used to evaluate whether his claimed thyroid and pulmonary disorders are the result of ionizing radiation exposure.  Pertinent to the reasons for this remand, the June 2010 report makes no mention of the dose estimate already of record, namely, the December 1999 estimate prepared by the Hanford Individual Dose Assessment Project.  The latter dose estimate is based on the same data, yet provides a much higher maximum dose (20.4 rem) than the one provided by the Director in the June 2010 report.  

With the principles of reasonable doubt in mind, the Board finds that a remand is necessary to obtain another advisory opinion from the Under Secretary of Health regarding the remaining claims on appeal.  Furthermore, unless conclusive evidence is cited which demonstrates that the dose estimate provided in the December 1999 report is factually inaccurate, any opinion should use the maximum possible ionizing radiation dose estimate in determining whether it is at least as likely as not that any thyroid disorder and/or pulmonary disorder was caused by radiation exposure in service.

Accordingly, the case is REMANDED for the following action:

1.  Forward the claims of service connection for a thyroid disorder and a pulmonary disorder to the VA Under Secretary for Benefits for appropriate action under 38 C.F.R. § 3.311(c), including opinions from the VA Under Secretary for Health as to whether it is at least as likely as not that the Veteran's thyroid nodules, COPD, or chronic lung scarring were caused by radiation exposure in service.  The VA Under Secretary for Benefits must inform the VA Under Secretary for Health that any opinion should be based on the maximum possible ionizing radiation dose estimate of record, including the dose estimate provided in the December 1999 report from the Hanford Individual Dose Assessment Project (20.4 rem), unless conclusive evidence is cited which demonstrates that a particular dose estimate is factually inaccurate.  

2.  Thereafter, the AOJ should review the claims file to ensure that the foregoing requested development has been completed.  In particular, the AOJ should review the examination/opinion report(s) to ensure that they are responsive to and in compliance with the directives of this remand and if not, the AOJ should implement corrective procedures.  See Stegall v. West, 11 Vet. App. 268 (1998).

3.  After completion of the above, and any other development deemed necessary, review the expanded record and determine if the appellant has submitted evidence sufficient to warrant entitlement to the benefits sought.  Unless the benefits sought on appeal are granted, the appellant and her representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond.  

The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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. 2010).




______________________________________________
MILO H. HAWLEY 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs