Citation Nr: 1737302 Decision Date: 09/06/17 Archive Date: 09/19/17 DOCKET NO. 12-07 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Pension Management Center in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to burial benefits. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant, V.H., and O.H. ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from June 1943 to December 1945. He died in November 2006; the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2010 and February 2011 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center (PMC) in St. Paul, Minnesota. The Board remanded the case in January 2015 to schedule the appellant for a hearing before the Board at the RO. The requested hearing was held before a Veterans Law Judge in September 2015. A transcript of the hearing is of record. Subsequently, the Board notified the appellant that the Veterans Law Judge who presided over the September 2015 hearing was no longer available to prepare a decision on the appeal. The appellant elected to testify at a new hearing before the Board. Accordingly, in August 2016 the Board remanded the case to schedule the appellant for a new hearing before the Board at the RO. In January, the appellant testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant seeks entitlement to service connection for the cause of the Veteran's death and entitlement to burial benefits. In August 2006, the Veteran presented to St. Joseph's Hospital with a history of left-sided pain for approximately one month and liver mass identified on prior ultrasound examination. CT examination of the chest, abdomen, and pelvis were completed and revealed numerous pulmonary nodules and liver masses consistent with metastatic disease. The distribution suggested a "potential for a tumor of gastrointestinal primary." (Subsequent testing ruled out a colon carcinoma). Following a CT-guided liver biopsy, the diagnosis on cytopathology study was adenocarcinoma of bile duct/pancreatic origin. In an addendum report, the pathologist indicated he inadvertently left off the ICD-9 code, which was 155.2 (malignant neoplasm of liver, not specified as primary or secondary). After further VA and private evaluation, the diagnosis in November 2006 was advanced metastatic carcinoma of pancreas with pulmonary and hepatic and intra-abdominal metastasis not amenable to further chemotherapy or treatment. The Veteran died in November 2006. A certificate of death issued in December 2006 and a second certificate issued in March 2007, which corrected the spelling of the appellant's last name, identified the immediate and only cause of death as pancreatic cancer. A third certificate of death issued in January 2016 listed the immediate and only cause of death as pancreatic cancer and other causes. In statements made in support of her claim, the appellant asserted that the Veteran served aboard the USS Puget Sound (CVE-113) in the South Pacific from 1943 until his discharge in 1945 and that he was exposed to asbestos. She reported that the Veteran retired from his career with the postal service in 1987, and she believed his retirement was related to his discovery of cancer. In subsequent statements, the appellant also asserted that the Veteran was exposed to radiation and that his pancreatic cancer was due to such exposure. In a November 2011 report of general information (VA Form 21-0820), for example, she told VA personnel that the Veteran's ship had not been "allowed to dock in the harbor in Japan because the Japanese government said the ship was too radioactive to be allowed to dock." The Veteran's service treatment records are silent for complaints, diagnosis, or treatment for pancreas, respiratory, or liver problems. On induction examination in June 1943 and separation examination in December 1945, the Veteran's thorax, respiratory system, and abdomen and pelvis were reported as normal on clinical examination; and chest x-ray examinations were reported as negative. The Veteran's service personnel records establish that after completing training at Camp Peary in Williamsburg, Virginia and Davisville, Rhode Island, he sailed for duty outside the continental limits of the United States while assigned to the 113th Naval Construction Battalion (NCB) (Seabees) on February 22, 1944, serving as a machinist's mate. On March 16, 1944, he landed at U.S. Naval Advance Base 722, located in Finschhafen, New Guinea. On May 6, 1944, he sailed from that location and landed at Hollandia, Dutch New Guinea on May 9, 1944. After nearly a year, he departed Hollandia on April 2, 1945 and arrived at Mindoro, Philippine Islands on April 11, 1945. On July 26, 1945, while still serving outside the continental United States, he was found qualified to wear the Asiatic-Pacific Campaign Ribbon and the Philippine Liberation Ribbon. On October 22, 1945, he had total overseas duty of 20 months, 0 (zero) days and began transfer for discharge. On November 6, 1945, he was transferred to the Intake Center, Personnel Separation Center, in Minneapolis, Minnesota. He reported to that location on December 6, 1945, three days before his honorable discharge from naval service. In response to the appellant's assertion that the Veteran was exposed to ionizing radiation associated with the occupation of Hiroshima or Nagasaki during military service, the RO requested assistance from the Defense Threat Reduction Agency (DTRA) in letters dated in September 2012, January 2013, and March 2013. In July 2013 correspondence, the DTRA acknowledged the appellant's contention that the Veteran had been exposed to radiation aboard a radioactive ship attempting to dock in Japan while assigned to the 113th Naval Construction Battalion. The letter explained that VA defines occupation of Hiroshima and Nagasaki, Japan, by United States forces" as "official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan, which were required to perform or support military occupation functions such as occupation of territory, control of the population, stabilization of the government, demilitarization of the Japanese military, rehabilitation of the infrastructure or deactivation and conversion of war plants or materials. 38 C.F.R. § 3.309(d)(3)(vi) (2016). In addition, the letter advised the appellant that VA defines the period of occupation of Hiroshima or Nagasaki, Japan, by United States forces as the period beginning on August 6, 1945, and ending on July 1, 1946. Id. § 3.309(d)(3)(ii)(B). The DTRA letter also detailed that the Veteran's service record indicates he was assigned to the 113th NCB from August 5, 1943 to November 6, 1945, with Duty in Dutch New Guinea and on Mindoro Island in The Philippines. The unit history of the 113th NCB indicates that the battalion had relocated to Mindoro by April 1945. Beginning in August 1945, elements of the battalion moved to other locations in the Philippines, such as Manila and Samar Island, as well as Balikpapan on Borneo Island. [The Veteran] departed from The Philippines on or about November 6, 1945, arrived at the Personnel Separation Center, Minneapolis, Minnesota, on December 6, and separated from service on December 9, 1945. Historical records do no indicate by what means he traveled from The Philippines to Minnesota; however, ships departing from The Philippines to the United States would not have been radiologically contaminated. The letter concluded that "Naval records do not document [the Veteran's] presence with the American occupation forces in Hiroshima or Nagasaki, Japan, as defined by VA." Based on this evidence, the Board finds that further development is warranted to determine whether the Veteran was exposed to ionizing radiation. Specifically, the AOJ should undertake further development to attempt to verify whether the Veteran participated in the American occupation of Hiroshima or Nagasaki, Japan, or whether he was otherwise a radiation-exposed veteran. In this regard, the Board emphasizes that cancer of the pancreas is both a presumptive disease specific to radiation-exposed veterans and a radiogenic disease. 38 C.F.R. §§ 3.309(d)(2)(viii); 3.311(b)(2)(xi). Moreover, the appellant appears to have mistaken the Veteran's unit, the 113th Naval Construction Battalion, for the USS Puget Sound (CVE-113). However, the ship upon which the Veteran served remains unknown, but may be relevant to the claim regarding exposure to radiation by providing additional details about his location(s) during service. Therefore, the AOJ should attempt to verify the Veteran's ship and any additional locations where he served than those already documented in his service records. Regarding the appellant's assertion that the Veteran was exposed to asbestos, the Board notes there is no specific statutory or regulatory guidance with regard to claims of service connection for asbestos-related diseases. However, VA's Adjudication Procedures Manual addresses these types of claims. See M21-1, Part IV, Subpart ii, Chap. 1, Sec. I, Para. 3 [hereinafter M21-1] (M21-1, IV.ii.1.I.3), entitled "Developing Claims for Service Connection for Asbestos-Related Diseases" (updated Aug. 17, 2017) and M21-1, IV.ii.2.C.2 entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos" (updated November 2, 2016). The manual provisions acknowledge that inhalation of asbestos fibers or particles can result in fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis; tumors; pleural effusions and fibrosis; pleural plaques (scars of the lining that surrounds the lungs); mesotheliomas of the pleura and peritoneum; and cancers of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate). M21-1, IV.ii.2.C.2.b. Gastrointestinal cancer develops in 10 percent of persons with asbestosis, and lung cancer that originates in the lung parenchyma rather than the bronchi eventually develops in about 50 percent of persons with asbestosis. M21-1, IV.ii.2.C.2.c. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, IV.ii.2.C.2.g. Diagnostic indicators include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. Id. A table describing the probability of asbestos exposure by Navy military occupational specialty (MOS) identifies Machinist Mate as an MOS having probable asbestos exposure. M21-1, IV.ii.1.I.3.d. Here, the Board finds that a VA medical opinion is required to obtain an opinion as to whether the Veteran's private and VA treatment records demonstrate evidence of asbestosis prior to the discovery of his pancreatic cancer in 2006. Finally, because the issue of entitlement to burial benefits is dependent on the outcome of the claim for service connection for the cause of the Veteran's death, it is inextricably intertwined with the issue being remanded and must also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Arrange to obtain from an appropriate physician a medical opinion addressing the etiology of the Veteran's pancreatic cancer, which was the cause of his death in November 2006. The contents of the entire electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated individual, and the medical opinion report should include discussion of the Veteran's documented medical history and the appellant's assertions. The reviewing physician is advised that the Veteran's Navy MOS as a machinist's mate has a "probable" risk of exposure to asbestos. Following a review of the claims file, the physician should respond to the following: a) Indicate whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran had (undiagnosed) asbestosis. b) If the Veteran had asbestosis, indicate whether it is at least as likely as not that his gastrointestinal cancer, pancreatic cancer, resulted from asbestosis. c) If the Veteran had asbestosis, indicate whether it is at least as likely as not that his lung cancer resulted from asbestosis. A complete medical analysis and rationale are to be included with all opinions expressed. 2. Attempt to verify the ship on which the Veteran served from February 1944 to December 1945 and document the Veteran's locations (other than those already recorded in his service records) during service. Thereafter, make a determination as to whether the Veteran was present at a site at which exposure to radiation was claimed to have occurred, to include being present during the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the applicable time period. 3. Take the appropriate steps to obtain the Veteran's DD Form 1141 (Record of Occupational Exposure to Ionizing Radiation), if any, from official sources, and other records that may contain information pertaining to the Veteran's radiation dose in service. Thereafter, all such records are to be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies, pursuant to 38 C.F.R. § 3.311(a)(2)(iii). 4. If the Veteran's dose estimate is indicative of exposure to radiation in service, forward the case to the VA Under Secretary for Benefits to obtain an opinion as to whether it is at least as likely as not that any exposure to ionizing radiation during the Veteran's active naval service caused or contributed to his development of pancreatic cancer or lung cancer, taking into consideration the factors listed under 38 C.F.R. § 3.311(e). If required, the Under Secretary for Benefits should consider whether an opinion from an outside consultant is necessary to address the claim. 5. After completing the requested actions, and any additional notification and/or development warranted by the record, readjudicate the claims on appeal. If the benefits sought remain denied, issue a supplemental statement of the case and provide the appellant and her representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims 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 2014). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).