Citation Nr: 1805286 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-11 182A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for kidney cancer, to include as due to ionizing radiation exposure. 2. Entitlement to service connection for right transfemoral amputation, to include as due to ionizing radiation exposure. 3. Entitlement to service connection for blindness, to include as due to ionizing radiation exposure. 4. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1954 to June 1956. He died in April 2013. The appellant is the surviving spouse. The Regional Office accepted her as the substitute appellant in an August 2013 letter. 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (2017). These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) RO in Nashville, Tennessee, and a July 2013 rating decision by the Milwaukee VA Pension Center in Milwaukee, Wisconsin. During the pendency of this appeal, in a September 2017 rating decision, the RO granted service connection for squamous cell carcinoma of the right auricular area (claimed as skin cancer). As this constitutes a full award of the benefit sought on appeal, this issue is no longer before the Board. FINDINGS OF FACT 1. The Veteran was exposed to ionizing radiation in service during Operation Teapot. 2. The Veteran's kidney disease, blindness and right transfemoral amputation were not incurred during active service and are etiologically related to service, to include as a result of exposure to ionizing radiation. 3. The Veteran died in April 2013. His death certificate lists the immediate causes of death as cardiac arrest, arrhythmia, and end stage renal failure. 4. At the time of his death, the Veteran was service-connected for posttraumatic stress disorder (PTSD), bilateral hearing loss, and tinnitus. He is also service-connected for squamous cell carcinoma of the right auricular area. 5. The Veteran's service-connected disabilities were not the principal or a contributory cause of his death. CONCLUSIONS OF LAW 1. The criteria for service connection for kidney cancer, to include as due to ionizing radiation exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2017). 2. The criteria for service connection for right transfemoral amputation, to include as due to ionizing radiation exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2017). 3. The criteria for service connection for blindness, to include as due to ionizing radiation exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.311 (2017). 4. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1131, 1310 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, the appellant, and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Service Connection The appellant contends that the Veteran's kidney cancer, right transfemoral amputation, and blindness were due to ionization radiation exposure during active service. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). If a § 3.309(a) chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). Continuity of symptoms is required, however, where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. Id. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disorder and the post-service symptomatology. Clyburn v. West, 12 Vet. App. 296, 302(1999). These § 3.309(a) chronic diseases, which include malignant (cancerous) tumors, kidney cancer, and nephritis may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time post-service. Kidney disease (other than nephritis or kidney cancer) and blindness (other than due to posterior subcapsular cataracts) are not among the listed chronic diseases. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). VA regulations also provide for service connection for radiation-exposed veterans under three different legal bases. First, there are diseases that are presumptively service connected specific to "radiation-exposed veterans" under 38 U.S.C. § 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(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). A "radiation-exposed Veteran" is defined as a Veteran who was involved in a "radiation-risk activity" during military service. Regulations define "radiation-risk activities" to include: participation at atmospheric nuclear tests; participation in the occupation of Hiroshima or Nagasaki, Japan, during specific periods of time; and service at specific nuclear weapons production facilities. 38 C.F.R. §§ 3.309 (d)(3). If a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one of the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311, if the Veteran suffers from a radiogenic disease and claimed exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and includes tumors of the brain and central nervous system. See 38 C.F.R. § 3.311(b)(2) (2017). Kidney Cancer The appellant seeks to establish service connection for kidney cancer as a result of exposure to ionizing radiation. A review of the Veteran's military records confirms that he was assigned to the unit that supported "Operation Teapot," a US Atmospheric Nuclear Weapons Test. Information from the Nuclear Test Personnel Review database reflects that the Veteran was assigned to B Company, 1st Infantry Battalion, Test Unit #1. His unit is confirmed to have participated in "Operation Teapot" in Nevada, in April 1955. Exposure to ionizing radiation during service is conceded. The Veteran's service treatment records do not show diagnosis and/or treatment for kidney disorders, including kidney cancer. Post-service medical records show the Veteran was diagnosed with proteinuria in March 1998. His treatment records since that time only reflect diagnoses of chronic kidney disease, unspecified; and chronic renal failure. February 2011 ultrasound finding revealed a mass in the left kidney, but a June 2011 nephrologist determined it was a cyst and did not need to be biopsied. See June 2011 CAPRI record. The Veteran is not shown to have had a diagnosis of kidney cancer during his lifetime. The appellant and the Veteran are not competent to diagnosis cancer. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77(Fed. Cir. 2007) (holding that "[l]ay evidence can be competent and sufficient to establish a diagnosis when ... a lay person is competent to identify the medical condition" and providing, as an example, that a layperson would be competent to identify a condition such as a broken leg, but would not be competent to identify a form of cancer). Absent the current existence of a claimed condition, there may be no service connection. Degmetich v. Brown, 104 F.3d 1328 (1997). Thus, service connection for kidney cancer is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent that the Veteran was diagnosed with other chronic kidney conditions during his lifetime, neither he nor the appellant asserted (nor did any competent evidence suggest) that those conditions had onset in service or were otherwise related to service, to include as a result of radiation exposure. While the evidence of record clearly shows the Veteran is a "radiation-exposed Veteran," because he engaged in a "radiation-risk activity" as defined by 38 C.F.R. § 3.309 (d); he was not diagnosed with a disease specific to radiation-exposed Veterans, as described in § 3.309 (d) during his lifetime. The Veteran is also not shown to have developed a radiogenic disease during his lifetime. Treatment records reflect diagnoses of chronic kidney disease and chronic renal failure, but not kidney cancer or another radiogenic disease as described in 38 C.F.R. § 3.311. Therefore, service connection is not warranted under these provisions. Although the Veteran's kidney disabilities are not listed as presumptive diseases under 38 C.F.R. § 3.309 (d), or as radiogenic diseases under 38 C.F.R. § 3.311, direct service connection must still be considered by way of in-service incurrence or aggravation therein, including presumptive service connection for chronic diseases. Combee, 34 F.3d at 1043. The preponderance of the evidence is against the claim even under these provisions. Neither the Veteran nor the appellant have asserted (nor does any competent evidence suggest) that those conditions had onset in service or were otherwise related to service, to include as a result of radiation exposure. Moreover, chronic kidney diseases (other than nephritis or kidney cancer) including proteinuria and end stage renal disease are not among the listed chronic diseases under 3.309(a). In an August 2008 VA assessment, a clinician indicated that the Veteran had chronic renal failure, which was presumed diabetic nephropathy with progression of azotemia; most likely a function of the natural history of the disease process. While the Veteran may have had nephritis, it is not shown to have manifested within a year of service discharge. As the preponderance of the evidence is against service connection for kidney cancer, the benefit of the doubt rule does not apply, and service connection is not warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Right Transfemoral Amputation and Blindness The appellant seeks service connection for right transfemoral amputation and blindness as a result of ionizing exposure. At the outset, the Board notes that right transfemoral amputation and blindness are not diseases presumptively associated with exposure to ionizing radiation, nor are they considered radiogenic diseases under 38 C.F.R. §3.311(b)(2). Posterior subcapsular cataracts are considered a radiogenic disease under 38 C.F.R. § 3.311, but the Veteran was not diagnosed with that type of cataracts during his lifetime. Although the Veteran's disabilities are not listed as presumptive diseases under 38 C.F.R. §§ 3.309(a) and 38 C.F.R. § 3.309 (d), or as radiogenic diseases under 38 C.F.R. § 3.311, direct service connection must still be considered by way of in-service incurrence or aggravation therein, including presumptive service connection for chronic diseases. Combee, 34 F.3d at 1043. Unspecified amputations and blindness are not among the listed chronic diseases under 3.309(a). The Board finds that the first and second elements for direct service connection have been satisfied. A current disability is established as the Veteran's right transfemoral amputation occurred in May 2011. He was also diagnosed with blindness and cataracts during the pendency of his claim. An in-service event, exposure to ionizing radiation, is also shown. Nonetheless, the Board finds that the third element, causal nexus, has not been established. Service treatment records were negative on treatments for or complaints of any right leg injuries or disorders. The service treatment records showed no treatment for, or diagnosis of, any bilateral eye disability. His separation examination in May 1956 showed a normal eye examination. The Veteran's vision was 20/20 bilaterally and he had normal color perception. The examination specifically noted that there was no eye disease or anatomical defects. Post-service treatment records show that the Veteran was diagnosed with diabetes mellitus and was treated for related problems affecting his bilateral lower extremities. Records show poor circulation due to diabetes led to an amputation of his right foot, fifth toe in April 2011. Medical records indicated that his right foot became infected with Methicillin-resistant Staphylococcus aureus (MRSA), which led to the Veteran's decision to amputate above his knee to stop the pain. Medical records show the Veteran has had blindness since at least 2008. He also had diagnoses of bilateral macular edema, diabetic retinopathy, vitreal hemorrhage, dry eyes, and cortical and nuclear cataracts, bilaterally. An October 2007 optometry note from an annual diabetic eye examination shows the Veteran had extensive laser treatment for background diabetic retinopathy. The left eye had at best corrected acuity of 20/400 due to macular involvement, while the right eye corrected to 20/50. The clinician also noted both crystalline lenses have cortical and nuclear cataracts. See July 2013 CAPRI record in Legacy Folder. At a March 2011 cataract evaluation, a clinician noted that the Veteran had cataracts in both eyes, macular edema with prolific diabetic retinopathy (PDR), and insulin-dependent diabetes mellitus. The Veteran reported experiencing progressive vision loss in both eyes over the last several years and attributed the loss to exposure to ionizing radiation. In March 2014, a VA examiner reviewed the Veteran's claims folder and recent examinations and confirmed a diagnosis of cataracts. The examiner indicated these cataracts were nuclear sclerosis cataracts, as his central part of the lenses was affected. The examiner also noted that radiation exposure is linked to posterior subcapsular cataracts, but the Veteran's cataracts were not posterior subcapsular cataracts. As shown, neither of the claimed conditions had onset in service or shortly thereafter. The medical evidence of record reflects that the Veteran's right transfemoral amputation was directly related to his diabetes and a MRSA infection. The Veteran is not service-connected for diabetes. The Veteran's eye problems, including blindness, are not shown to be related to service, including radiation exposure, by competent evidence. His blindness was not diagnosed until 2008, which is many years after discharge from service. The Board acknowledges the appellant's belief that the Veteran's exposure to ionizing radiation led to his right transfemoral amputation and blindness. Claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, they are not competent to provide evidence on more complex medical questions beyond simple observations. See Colantonio, 606 F.3d at 1382. As the appellant has not shown to possess the education, training, or experience to offer a competent nexus opinion on a complex medical question, such as the one involved in this case, the Board does not find her lay opinion competent or probative. As such, the Board finds that a causal nexus is not established. In conclusion, the preponderance of the evidence is against the claim. As the benefit of the doubt rule does not apply, service connection is not warranted. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Service Connection for the Cause of Death Legal Criteria A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive Dependency and Indemnity Compensation (DIC). 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017). The death of a 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. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a) (2017). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2017). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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 C.F.R. § 3.312(c)(1). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the claimant shall give the benefit of the doubt. 38 U.S.C. § 5107(b) (2012). Analysis The appellant seeks service connection for cause of the Veteran's death. She contends that the Veteran's exposure to ionizing radiation caused his death. See April 2014 VA Form 9. Having carefully reviewed the evidence of record, the Board finds that service connection for the cause of the Veteran's death is not warranted. The Veteran's exposure to ionizing radiation in service has been conceded. The Veteran's April 2013 death certificate listed his immediate causes of death as cardiac arrest, arrhythmia, and end stage renal failure. At the time of the Veteran's death, he was service-connected for PTSD, bilateral hearing loss, and tinnitus. He was posthumously awarded service connection for squamous cell carcinoma of the right auricular area. There is no competent evidence showing that the Veteran's service-connected disabilities of PTSD, bilateral hearing loss, tinnitus, and squamous cell carcinoma of the right auricular area either caused or contributed to his death. As for those conditions which are shown on the death certificate to have resulted in the Veteran's death, the probative evidence of record is insufficient to relate them to service. The Board has previously explained why service connection is not warranted for kidney disease, to include end stage renal disease, from which the Veteran suffered during his lifetime. The Veteran's cardiac arrest and arrhythmia are not shown to have had onset during service or within a year thereof; or to be otherwise related to service by competent evidence. Further, cardiac arrest and arrthymia are not amongst the types of diseases for which service connection on a presumptive basis as a result of exposure to ionizing radiation may be granted. See 38 C.F.R. § 3.309(d)(2). The appellant, as a lay person, is competent to offer an opinion on a simple medical condition, that is, one capable of lay observation. Davidson, 581 F.3d at 1316. However, determining the cause of one's of death is a complex medical issue requiring expertise the appellant has not been shown to possess. Therefore, her lay opinion regarding the Veteran's causes of death is not competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Furthermore, the Board does not find that a medical opinion is warranted in this case as there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (a); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); see also DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). There is very limited and speculative lay testimony that cannot serve as passing the threshold to trigger a medical opinion request. The Board is sympathetic to the appellant's beliefs regarding the Veteran's cause of death; however, the preponderance of the evidence is against the claim. The benefit of the doubt rule does not apply. Service connection for cause of the Veteran's death is not warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER Service connection for kidney cancer, to include as due to ionizing radiation exposure, is denied. Service connection for right transfemoral amputation, to include as due to ionizing radiation exposure, is denied. Service connection for blindness, to include as due to ionizing radiation exposure, is denied. Service connection for the cause of the Veteran's death is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs