Citation Nr: 1313134 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 04-30 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to an effective date earlier than May 1, 1988, for the award of service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from September 1952 to July 1954. He died in August 1971. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The case was most recently before the Board in December 2009. At that time, the Board granted an effective date of May 1, 1988, for the award of service connection for the cause of the Veteran's death. The Board also established an effective date of May 1, 1988, for entitlement to payment of Dependency and Indemnity Compensation (DIC) benefits as the surviving spouse of the Veteran, but for the period from August 8, 1991, to October 1, 1998, and denied entitlement to accrued benefits. The appellant appealed the Board's December 2009 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2011 Memorandum Decision, the Court vacated the Board's December 2009 decision and remanded the matter to the Board for further proceedings consistent with the Memorandum Decision. The Court noted that the appellant did not dispute the Board's findings concerning her reinstatement of DIC benefits and the accrued benefits claim. The Court considered those claims to be abandoned. Thus, those two issues are no longer on appeal to the Board. Although the Court vacated the Board's December 2009 decision, the appellant appealed the Court's June 2011 Memorandum Decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). This was because the appellant's representative before the Court argued that the Court should have reversed the Board's decision rather than remand the matter. In a February 2012 decision, the Federal Circuit affirmed the Court's June 2011 Memorandum Decision in which it remanded the case to the Board instead of reversing the decision. Thereafter, in September 2012, the appellant petitioned for a writ of certiorari to the Supreme Court of the United States. The petition was denied in January 2013. Thus, the issue of entitlement to an effective date earlier than May 1, 1988, for the award of service connection for the cause of the Veteran's death is properly before the Board. In November 2012, the appellant submitted a motion to vacate the Board's December 2009 decision as to her reinstatement of DIC benefits and the accrued benefits claim. The Board denied the motion to vacate in December 2012. Then, through several pieces of correspondence, dated from December 2012 to March 2013, the appellant requested that the December 2009 decision either be vacated or reconsidered. The Board denied the motions for vacatur and reconsideration in March 2013. Through her correspondence, the appellant also requested that the undersigned Veterans Law Judge be recused or disqualified from further participation in her appeal. In March 2013, the Board also denied the motion to disqualify the undersigned Veterans Law Judge from further participation in the appellant's appeal. The appellant has had numerous representatives during the course of this claim. It is clear from recent statements that she proceeds in this appeal pro se. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. According to his certificate of death, the Veteran died in August 1971, from intraabdominal metastases due to reticulum cell sarcoma. 2. The appellant's application for DIC was received by VA on September 10, 1971, which was within one year of the Veteran's death. 3. It was previously conceded that the Veteran was as likely as not exposed to ionizing radiation during Operation UPSHOT-KNOTHOLE in service. 4. The competent medical evidence attributes the disease process leading to the Veteran's death to exposure to ionizing radiation in service. CONCLUSION OF LAW The criteria for an effective date of August 1, 1971, for the award of service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1310, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. See 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). In light of the fully favorable decision below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error. Except as otherwise provided, the effective date of an award of DIC based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). This will be on the basis of the facts found. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(a). In regard to death benefits, however, for service-connected death after separation from service, the effective date is the first day of the month in which the Veteran's death occurred if the claim is received within one year after the date of death; otherwise, date of receipt of claim. See 38 U.S.C.A. § 5110(d); 38 C.F.R. § 3.400(c)(2). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive DIC. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2012); 38 C.F.R. § 3.312 (2012). The appellant as the Veteran's surviving spouse asserts that the disease process leading to the Veteran's death was a result of his active military service. Specifically, she states that the Veteran developed reticulum cell sarcoma due to exposure to ionizing radiation in service. The appellant further states that the Veteran participated in an atmospheric nuclear weapons test known as Operation UPSHOT-KNOTHOLE, which was the source of the radiation exposure. She maintains that the Veteran's death is in fact service connected because his reticulum cell sarcoma is related to the in-service radiation exposure. This DIC claim has already been granted under a certain theory of entitlement. Under 38 C.F.R. § 3.311 (2012), there exists a procedural framework for claims based on exposure to ionizing radiation. This includes claims concerning radiogenic diseases resulting from atmospheric nuclear weapons tests. The medical evidence of record shows that the Veteran's reticulum cell sarcoma from which he died is synonymous with non-Hodgkin's lymphoma, which is a radiogenic disease. See 38 C.F.R. § 3.311(b)(2). During the course of the appeal of the underlying claim of service connection for the cause of the Veteran's death on the merits, the Board remanded the claim in June 2003, in part, for the RO to consider the application of section 3.311. At the time, there had been no finding of fact that the Veteran had been exposed to radiation during service. In an August 2003 rating decision, the RO granted the underlying claim under the provisions of 38 C.F.R. § 3.311. Specifically, the RO applied 38 C.F.R. § 3.311(a)(4)(i), which states that if military records do not establish presence at or absence from a site at which radiation is claimed to have occurred, the Veteran's presence at the site will be conceded. In consideration of this provision, the RO found that, although the Defense Threat Reduction Agency (DTRA) could not confirm the Veteran's participation in Operation UPSHOT-KNOTHOLE, the RO would concede that the Veteran was at the site and thus exposed to ionizing radiation. The RO then granted entitlement to service connection for the cause of the Veteran's death. In the December 2009 decision, after the appellant appealed for an earlier effective date for the DIC award, the Board established an effective date of May 1, 1988, for the award of service connection for the cause of the Veteran's death. The Board explained that May 1, 1988, was the earliest effective date allowable because entitlement arose pursuant to a liberalizing law which added lymphomas (except Hodgkin's disease) to the list of presumptive diseases associated with exposure to ionizing radiation, effective May 1, 1988. See Radiation-Exposed Veterans Compensation Act of 1988, Pub. L. 100-321, sec. 2(a), 102 Stat. 485-86; see also 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a) (when VA awards benefits pursuant to a liberalizing regulation, the award may not be made effective earlier than the effective date of the liberalizing regulation). In the June 2011 Memorandum Decision, the Court indicated that, although May 1, 1988, may be the proper effective date under certain presumptive service connection provisions, the Board failed to address all issues reasonably raised by the appellant or the record. See Robinson v. Mansfield, 21 Vet. App. 545, 552-56 (2008). The Court found that the Board did not address the theory of direct service connection. The Court noted that presumptive and direct service connection are different theories available to support the same claim, not themselves individual claims. See Hillyard v. Shinseki, 24 Vet. App. 343 (2011). The Court stated that if service connection is established on a direct rather than presumptive basis, the effective date would have to be reconsidered by the Board. In remanding the case, the Court indicated that the Board is required to address whether there is sufficient evidence of a nexus linking the Veteran's cause of death to service. In affirming the Court's June 2011 Memorandum Decision, the Federal Circuit indicated that there are at least two unresolved factual issues that the Board must address before the appellant may be awarded an earlier effective date based on direct service connection. The Federal Circuit noted that the appellant must first show that the Veteran was exposed to radiation during service and, second, the appellant must show that the Veteran's death was caused by such exposure. As noted previously, service connection may generally be established for disability resulting from disease or injury incurred in or aggravated by active military service. Specifically, to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In the present case, the evidence clearly shows that the Veteran had a present disability in reticulum cell sarcoma, also known as non-Hodgkin's lymphoma, and that this disease process caused his death. The Board turns to whether the evidence establishes the in-service incurrence of radiation exposure. In developing the underlying claim, the RO requested information from official sources as to whether the Veteran was exposed to radiation in service and, specifically, whether he participated in Operation UPSHOT-KNOTHOLE. The operational period for Operation UPSHOT-KNOTHOLE was from March 17, 1953, through June 20, 1953. See 38 C.F.R. § 3.309(d)(3)(v)(i). This was during the Veteran's period of active military service. Reports and information in the claims file reveal that Operation UPSHOT-KNOTHOLE consisted of eleven nuclear test shots at Nevada Test Site north of Las Vegas, Nevada. Most of the Veteran's service records are unavailable for review as the National Personnel Records Center informed VA that the records were likely destroyed in a fire. In March 1997, the Defense Special Weapons Agency (DSWA) found that the available records did not document the Veteran's presence at or support of U.S. atmospheric nuclear testing. Additionally, DSWA noted that a careful review of available dosimetry data revealed no record of radiation exposure for the Veteran. Specifically, DSWA found that the Veteran was assigned to 4054th Army Service Unit at Fort Bliss, Texas, for most of 1953 and that he was transferred to Technical Battery, 1st Guided Missile Group, 1st Guided Missile Brigade on December 11, 1953, also at Fort Bliss. DSWA noted that there was no indication that the Veteran was sent anywhere on temporary duty during 1953. In April 2000, DTRA found that the information provided in DSWA's March 1997 letter remained current. Additional detail was provided by DTRA as it was conceded that 19 individuals from the Veteran's unit participated in Operation UPSHOT-KNOTHOLE. Significantly, the Veteran was not among the 19 individuals from his unit that were found to be at Operation UPSHOT-KNOTHOLE. Moreover, DTRA noted that the Veteran did not transfer to the unit in question until December 11, 1953, which was after Operation UPSHOT-KNOTHOLE occurred. In March 2001, DTRA again found that the Veteran did not participate in Operation UPSHOT-KNOTHOLE. According to DTRA, since the April 2000 letter, 100 individuals from Fort Bliss were in fact determined to have been at Operation UPSHOT-KNOTHOLE; however , the Veteran was not among those listed. A similar finding was made by DTRA in a January 2002 letter. In May 2002 and July 2002, DTRA informed the appellant that it had mailed letters from the appellant to 88 individuals for whom it had addresses who participated in Operation UPSHOT-KNOTHOLE. The appellant had wished to contact the individuals to attempt to corroborate the Veteran's participation in Operation UPSHOT-KNOTHOLE. Notably, in a September 2002 letter, the appellant's former representative indicated that the process of mailing the letters did not produce any responses. This official information provided by DSWA and DTRA does not support the Veteran's participating in Operation UPSHOT-KNOTHOLE. In fact, the official record tends to show that he was not present there. To support her claim, the appellant has submitted statements from multiple individuals who recall either that the Veteran was in fact at Operation UPSHOT-KNOTHOLE, or that the Veteran informed them that he was at Operation UPSHOT-KNOTHOLE. In April 1996 and May 1996 statements, O.L. and F.H. both stated that they worked with the Veteran after his military service. They were aware that the Veteran participated in Operation UPSHOT-KNOTHOLE. In a December 1996 statement, E.F. reported that he served with the Veteran at Fort Bliss. Although E.F. did not transfer to Nevada Test Site himself, E.F. recalled that the Veteran went with others of their unit to participate in UPSHOT-KNOTHOLE. In identical statements dated in July 1999, O.L. and F.H., as well as A.A., each stated that they debriefed the Veteran after his military service concerning his post-service employment. They each stated that the Veteran participated in Operation UPSHOT-KNOTHOLE. In a July 1999 statement, E.F. again reported that he knew the Veteran participated in Operation UPSHOT-KNOTHOLE. In May 2001, K.K. submitted a statement with his own service personnel records that placed K.K. at Nevada Test Site in May 1953. K.K. recalled that he and the Veteran were friends in the Army and that they both were at Nevada Test Site during Operation UPSHOT-KNOTHOLE. Also of record is a letter dated in March 1968 apparently written by the Veteran. In the letter, the Veteran stated that he had been very ill since 1966 and had been recently diagnosed as having non-Hodgkin's lymphoma. He believed the cancer was due to his work in the military, which involved radar work and participation in various "highly classified" tests. The Veteran stated that he was sent to various locations on short notice to participate in "tests" including at Nevada Test Site. He did not specifically state that the tests were atmospheric nuclear weapons tests, but he did state that he was expected to wear a radiation badge at all times to register amounts of radiation received. In the course of prosecuting the claim, the appellant has also submitted multiple statements wherein she recounts that the Veteran participated in Operation UPSHOT-KNOTHOLE and that he was exposed to radiation in service. If the above-described statements are taken as credible, they constitute a significant amount of evidentiary weight supporting the Veteran's participation in Operation UPSHOT-KNOTHOLE and exposure to radiation in service. The information from DSWA and DTRA undermines the credibility to a degree. The Board finds, however, that the submitted statements at least raise a reasonable doubt as to whether the Veteran participated in UPSHOT-KNOTHOLE and was exposed to radiation in service. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding any point of the claim, such doubt will be resolved in favor of the claimant. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). When reasonable doubt is resolved in favor of the appellant, and with consideration of the fact that the RO has essentially conceded in-service exposure to radiation, the Board finds that the Veteran was as likely as not exposed to ionizing radiation during Operation UPSHOT-KNOTHOLE in service. Indeed, VA conceded radiation exposure when it originally granted service connection. The appellant has submitted medical opinions regarding the possibility of a nexus between the Veteran's reticulum cell sarcoma and his exposure to radiation. In a March 1996 letter, Dr. W.F. recalled that he treated the Veteran from 1968 until his death in 1971 for cancer that he had since 1966. In March 1996 and April 1996 letters, Drs. H.B. and P.W. stated that reticular cell sarcoma is synonymous with the term non-Hodgkin's lymphoma. In an October 2007 letter, Dr. W.F. supplemented his March 1996 letter. He indicated that he reviewed the relevant information and could now state that the Veteran's death from reticular cell sarcoma (synonymous with non-Hodgkin's lymphoma) was due to his radiation exposure which was related to his participation in nuclear tests during his military service. In another October 2007 letter, Dr. C.B. stated that he reviewed the medical records and it was obvious that the Veteran died of reticular cell sarcoma that is also known as non-Hodgkin's lymphoma. Dr. C.B. gave the opinion that the disease developed as a result of the Veteran's repeated radiation exposure during his military service from 1952 to 1954. Later in October 2007, Dr. H.B. submitted another letter. Dr. H.B. stated that he could find no reason to disagree with Dr. W.F. with the finding of service connection for the cause of death. These medical opinions from October 2007 constitute sufficient evidence of a nexus linking the Veteran's reticulum cell sarcoma to his exposure to radiation in service. There are no similarly detailed medical opinions conflicting with these doctors' opinions. In consideration of the evidence of record, the Board finds that the competent medical evidence attributes the disease process leading to the Veteran's death to exposure to ionizing radiation in service. In view of this finding, the Board concludes that entitlement to service connection for the cause of the Veteran's death is substantiated under the theory of direct service connection in addition to the previously substantiated theory pursuant to 38 C.F.R. § 3.311. See 38 U.S.C.A. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.304, 3.312. As the claim has been substantiated on the basis of direct service connection, the Board will consider whether an effective date is warranted earlier than May 1, 1988. As discussed in the Board's December 2009 decision, the appellant's claim for DIC based on service connection for the cause of the Veteran's death was received by VA on September 10, 1971, and remained pending until it was granted in the August 2003 rating decision on appeal. This is because when the appellant submitted her application for DIC in September 1971, it constituted a claim for both death pension and DIC, but only the pension claim was addressed at that time. See 38 U.S.C.A. § 5101(b)(1) (West 2002); 38 C.F.R. § 3.152(b)(1) (2012); see also Isenhart v. Derwinski, 3 Vet. App. 177, 179 (1992) (noting that the statutory and regulatory language was clear and unambiguous that a claim for death pension shall be considered a claim for DIC). In addition, both the Veteran's former representative and VA's General Counsel agreed in a February 1999 Joint Motion for Remand (JMR) that the appellant filed a timely application for DIC benefits in September 1971. The Court granted the JMR later in February 1999; thus, an agreed upon fact of this case is that the appellant filed a timely application for DIC benefits in September 1971. Moreover, given multiple inconsistencies, there was not a sufficient basis upon which the appellant could have deduced that her claim for DIC had been finally adjudicated at any time prior to August 2003. See Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed. Cir. 2006); Ingram v. Nicholson, 21 Vet. App. 232, 255 (2007). As noted previously, except as otherwise provided, the effective date of an award of DIC (as well as direct service connection) based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. Notably, the medical opinions representing sufficient evidence of a nexus for the claim were not received until many years after the claim was filed in September 1971. In the June 2011 Memorandum Decision, the Court pointed out that it has held that an appellant may use evidence, no matter when submitted, to support a claim for an earlier effective date. See McGrath v. Gober, 14 Vet. App. 28, 35 (2000). In that case, the Court also held that in an original claim for benefits, the date the evidence is submitted or received is irrelevant when considering the effective date of an award. . . . Thus, when an original claim for benefits is pending . . . the date on which the evidence is submitted is irrelevant even if it was submitted over twenty years after the time period in question. Id. According to McGrath, it is irrelevant that the nexus opinion evidence was submitted over 35 years after the time period in question. Essentially, entitlement to service connection arose when reticulum cell sarcoma manifested as a result of radiation exposure in 1966 because this is what the evidence shows regardless of when the evidence was created or submitted. Along these lines, entitlement to service connection for the cause of the Veteran's death arose when he died on August [redacted], 1971. The proper effective date is generally the later of the date of receipt of claim or date entitlement arose. This would be September 10, 1971. In regard to death benefits, however, for service-connected death after separation from service, the effective date is the first day of the month in which the Veteran's death occurred if the claim is received within one year after the date of death; otherwise, date of receipt of claim. See 38 U.S.C.A. § 5110(d); 38 C.F.R. § 3.400(c)(2). Because the appellant's claim was received within one year after the date of death, the Board concludes that the proper effective date for the award of service connection for the cause of the Veteran's death is August 1, 1971. This represents a full grant of the benefits sought on appeal. ORDER An effective date of August 1, 1971, for the award of service connection for the cause of the Veteran's death is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs