Citation Nr: 1413167 Decision Date: 03/28/14 Archive Date: 04/08/14 DOCKET NO. 09-32 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Hughes, Counsel INTRODUCTION The Veteran served on active duty from January 1946 to November 1947. He died in December 2006 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) that denied entitlement to service connection for the cause of the Veteran's death. The appellant filed a notice of disagreement in October 2007. A statement of the case was issued in July 2009, and the appellant perfected her appeal in August 2009. FINDINGS OF FACT 1. The Veteran died in December 2006 from metastatic colon cancer. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. As the Veteran is not shown to be a "radiation-exposed" Veteran or to have been exposed to ionizing radiation, the legal authority governing such a claimant is not applicable to him. 4. The Veteran's cause of death manifested many years after his period of active service and it has not otherwise been shown to be related to military service to include exposure to ionizing radiation. CONCLUSION OF LAW The Veteran's death was not caused by, or substantially or materially contributed to by, a disability incurred in or aggravated by his active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must also include: (1) a statement of the conditions, if any, for which a 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 claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Here, there being no disability for which service connection was in effect at the time of the Veteran's death, and the May 2007 notice letter otherwise including an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected, the Board concludes that the appellant was provided the notice required under Hupp, and that the duty to notify has been met. VA also has a duty to assist the appellant in the development of the claim. This duty includes making reasonable efforts to assist her in obtaining evidence necessary to substantiate the claim unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. In this regard, the Veteran's service treatment records (STRs) are associated with his claims file, and pertinent postservice treatment records have been secured. VA has also obtained confirmation from the Defense Threat Reduction Agency (DTRA) that, while the Veteran participated in the Bikini Scientific Resurvey during his service aboard the USS Coucal from July 7 to October 20, 1947, he was not a participant of Operation Crossroads and there is no record his radiation exposure. VA has not sought a medical opinion in this matter. The Board finds that a medical opinion is not necessary. With no competent evidence that any disease listed or identified as causing or contributing to cause his death was manifested in service (or during an applicable postservice presumptive period) or that any such disability might have been related to his service or caused or aggravated by a service connected disability, the factual evidence of record provides no basis for seeking a medical advisory opinion in this matter. As the "low threshold" standard as to when an examination to secure a nexus opinion is required is not met; development for such an examination is not necessary. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The appellant has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis The appellant contends that the condition leading to the Veteran's death, metastatic colon cancer, was caused by exposure to the ionizing radiation during resurvey of Bikini Atoll in July/August 1947 (while serving aboard the USS Coucal) after Operation Crossroads. To establish service connection for the cause of a veteran's death, the evidence must show that the disease which caused death was incurred in or aggravated by service or that a service-connected disability caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For it to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather, it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. That is to say, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c); see Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Generally, minor service-connected disabilities, particularly those of a static nature or those not materially affecting a vital organ (e.g., those disabilities affecting muscular or skeletal functions), are not held to have contributed to a death that is primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2), (3). Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Certain chronic diseases, including malignant tumors, may be presumed to have incurred in service, although not otherwise established as such, if manifested to a degree of 10 percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(d). Service connection for a disease that is claimed to be attributable to ionizing radiation exposure during service may be established in one of three different ways, which have been outlined by the United States Court of Appeals for Veterans Claims (Court). See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, where it is contended that disease developed as a result of exposure to ionizing radiation during service, service incurrence may be presumed under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) for veterans who participated in defined radiation risk activities and have certain diseases. Second, service connection may 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 certain conditions are met. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). As it applies to 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), the term "radiation-exposed veteran" means a veteran who participated in a "radiation-risk activity." 38 U.S.C.A. § 1112(c)(3)(A); 38 C.F.R. § 3.309(d)(3)(i). The term "radiation-risk activity" means: onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war of Japan during World War II resulting in an opportunity for exposure to radiation comparable to those occupying Hiroshima or Nagasaki; certain service on the grounds of a gaseous diffusion plant in Paducah, Kentucky, Portsmouth, Ohio, or at area K25 at Oak Ridge, Tennessee; or certain service on Amchitka Island, Alaska. See 38 U.S.C.A. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii). Diseases presumptively service connected for radiation-exposed veterans under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) include: leukemia (other than CLL), thyroid cancer, breast cancer, pharynx cancer, stomach cancer, small intestine cancer of the, pancreas cancer, multiple myeloma, lymphomas (except Hodgkin's disease), bile duct cancer, gall bladder cancer, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary gland, urinary tract cancer, bronchiolo-alveolar carcinoma, brain cancer, colon cancer, lung cancer, and ovarian cancer. 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d)(2). The second approach to substantiate a radiation exposure related service connection claim is under 38 C.F.R. § 3.311. To consider a claim under § 3.311, the evidence must show: (1) the veteran was exposed to ionizing radiation in service; (2) subsequently developed a radiogenic disease; and (3) such disease became manifest within a period specified by the regulation. 38 C.F.R. § 3.311(b). If any of these three requirements is not met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311. 38 C.F.R. § 3.311(b)(1)(iii). For purposes of 38 C.F.R. § 3.311, the term "radiogenic disease" means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2). The regulation states that the term radiogenic disease shall include: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. 38 C.F.R. § 3.311(b)(2). Section 3.311(a) calls for the development of a radiation dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either 38 C.F.R. § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing and in claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims involving radiation exposure, the VA Under Secretary for Health will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. Id. Finally, as previously noted, direct service connection can be established by "showing that the disease or malady was incurred during or aggravated by service," a task which "includes the difficult burden of tracing causation to a condition or event during service." Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Thus, the Board must not only determine whether the Veteran had a disability which is recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether his disability is otherwise the result of active service. Simply stated, the fact that the Veteran may not meet the requirements of a presumptive regulation would not in and of itself preclude him from establishing service connection as he may, in the alternative, establish service connection by way of proof of actual direct causation. The Board has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. During the Veteran's lifetime, service-connection had not been established for any disability. The Veteran died in December 2006. His certificate of death lists the immediate cause of death as metastatic colon cancer. The evidence does not suggest and the appellant has not contended that the disease was present in service or until many years thereafter. Rather, as noted above, she contends that the Veteran's death causing metastatic colon cancer was caused by exposure to the ionizing radiation during resurvey of Bikini Atoll in July/August 1947 (while serving aboard the USS Coucal) after Operation Crossroads. In response to a VA request for confirmation of the Veteran's participation on Operation Crossroads, in June 2007, DTRA responded that, according the Veteran's service record, he served aboard the USS Coucal from July 7 to October 20, 1947 and historical records indicated that the USS Coucal participated in the Bikini Scientific Resurvey from July 17 to August 27, 1947. DTRA noted that personnel involved in the resurvey are not considered to be participants on Operation Crossroads, as defined by VA. Further, after a careful search of available dosimetry, DTRA found no record of radiation exposure for the Veteran. As such, while the Veteran had metastatic colon cancer, he is not a radiation-exposed veteran and the provision presumptively service-connecting that disease is not applicable. The medical evidence attributes the Veteran's death to metastatic colon cancer. Thus, the remaining question is whether the Veteran's metastatic colon cancer was related to his service. Based on the above, although colon cancer is a listed radiogenic disease, the Board finds that the Veteran is not shown to be a "radiation-exposed" Veteran, did not have occupational exposure to ionizing radiation; colon cancer did not manifest within the first year after the Veteran's discharge from service, and colon cancer is not otherwise related to his service. The Veteran is not shown to be a "radiation-exposed" Veteran, and the legal authority governing such a claimant is not applicable to him. See 38 C.F.R. § 3.309(d). To be considered a "radiation-exposed" Veteran, a Veteran must have participated in a "radiation-risk activity," such as on-site participation in a test involving the atmospheric detonation of a nuclear device. Id. The appellant alleges that the Veteran was exposed to ionizing radiation during his participation in the resurvey of Bikini Atoll in July/August 1947 (while serving aboard the USS Coucal) after Operation Crossroads. Service records show no indication of participation in any nuclear testing and such is not alleged. The DTRA found that personnel involved in the resurvey are not considered to be participants on Operation Crossroads, as defined by VA. The Board finds the service records and response from the DTRA more probative than the appellant's statements. As such, the Veteran is not considered a radiation-exposed Veteran and the provisions of 38 C.F.R. § 3.309(d) are not applicable in this case. The preponderance of the evidence also reflects that the Veteran was not exposed to ionizing radiation during service; thus, the provisions of 38 C.F.R. § 3.311 are not applicable in this case. Although the appellant has submitted lay statements to the effect that the Veteran was exposed to radiation while serving aboard the USS Coucal during the resurvey of Bikini Atoll in July/August 1947, after a search of available dosimetry data, no record of the Veteran being exposed to radiation was found by DTRA. The evidence in this case is against a finding that the Veteran was exposed to ionizing radiation during his military service. While none of the provisions relevant to exposure to radiation are applicable in this case, the Board must also determine whether metastatic colon cancer is shown related to service. See Combee, 34 F.3d at 1043. Here, there is no medical opinion relating the Veteran's metastatic colon cancer to his service. There is no competent (medical) evidence in the record of a possible nexus between the Veteran's metastatic colon cancer and his service. None of the Veteran's postservice treatment records suggest that there might have been such a nexus. The appellant has not submitted any clinical or textual medical evidence even suggesting that the Veteran's metastatic colon cancer might have been related to his service. The Board has closely reviewed the appellant's own lay statements that relate the Veteran's metastatic colon cancer to his exposure to radiation in service. The Board finds that they are not competent (and probative) evidence in the matter of a nexus between the Veteran's metastatic colon cancer and his service, including any alleged radiation exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board.) Metastatic colon cancer is not a [simple] condition identifiable by lay observation; the appellant is not reporting a contemporaneous (in service or proximate thereto) diagnosis; and she does not describe symptoms (in or proximate to service) that support a later diagnosis. The matter of a nexus between metastatic colon cancer (which involves an insidious process) and radiation exposure in a particular case requires expertise (to include familiarity with scientific studies) which the appellant is not shown (and does not claim) to have. Significantly, she does not cite to a supporting medical opinion or medical literature. The Board acknowledges the August 2009 VA Form 646, Statement of Accredited Representative in Appealed Case, in which the Veteran's representative notes that the lack of sufficient evidence at this time to support the contention of radiation exposure is not a definitive indicator that both the knowledge level and Federal laws may not be changed at some future time. The representative further states that the appeal is being pursued to ensure that the issue of death due to after-the-fact radiation exposure will be of record and may be revisited should subsequent legislative changes warrant such review. The appellant is free to re-submit her claim in the future should the knowledge level and/or Federal laws change. In conclusion, considering the lay and medical evidence in this case, the preponderance of the evidence is against the claim for service connection for metastatic colon cancer, on multiple bases as articulated above, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs