Citation Nr: 1805595 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 15-06 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Appellant and her daughter ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran had active military service from March 1943 to March 1949. He died in October 1980 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for the cause of the Veteran's death. The appellant and her daughter testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in October 2017. A copy of the transcript has been reviewed and associated with the claims file. FINDING OF FACT 1. The Veteran died in October 1980. The death certificate lists the cause of death as respiratory failure due to bronchiectasis due to immunoglobulin A deficiency. 2. The Veteran had been diagnosed with hypogammaglobulinemia prior to his death, which was the result of radiation exposure in service. 3. The evidence shows that the Veteran died as the result of complications of hypogammaglobulinemia, which was caused by radiation exposure in service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(d), 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist In this decision, the Board grants entitlement to service connection for the cause of the Veteran's death. As this represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act (VCAA) of 2000, 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012), is necessary. 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. 38 U.S.C. §1310; 38 C.F.R. § 3.312. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service connected disability was either a principal or a contributory cause of death. A disability will be considered the principal 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. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A service connected disability is one that was incurred in or aggravated during active service, or may be presumed to have been incurred during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The appellant has claimed that the Veteran was exposed to radiation while in service. Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are specific diseases which may be presumptively service connected if manifested in a radiation exposed veteran. 38 U.S.C. § 1112 (c)(1), (2); 38 C.F.R. § 3.309 (d)(1), (2). A "radiation-exposed veteran" is defined as a veteran who, while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. The term "radiation-exposed veteran" means a veteran who participated in a "radiation-risk activity." 38 U.S.C. § 1112 (c)(3)(A); 38 C.F.R. § 3.309 (d)(3)(i). "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309 (d). The term "onsite participation" means during the official operational period of an atmospheric nuclear test, presence at the test site, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test. 38 C.F.R. § 3.309 (d)(3)(iv)(A). For tests conducted by the United States, the term operational period for Operation CROSSROADS means the period of July 1, 1946 to August 31, 1946. 38 C.F.R. § 3.309 (d)(3)(v)(B). For Operation SANDSTONE it means the period of April 15, 1948, through May 20, 1948. 38 C.F.R. § 3.309 (d)(3)(v)(C). The second way to establish service connection for a disease attributable to radiation exposure is under 38 C.F.R. § 3.311. According to this regulation, other "radiogenic" diseases, such as any form of cancer listed under 38 C.F.R. § 3.311 (b)(2), found five years or more after service in an ionizing radiation-exposed veteran may also be service connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service. Lastly, service connection in radiation cases can also be established directly by showing that the disease was incurred during or aggravated by service, a task which includes the burden of tracing causation to a condition or event during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Factual Background and Analysis In this case, the appellant was married to the Veteran at the time of his death in October 1980. The record reflects that the Veteran participated in Atomic bomb testing during operation CROSSROADS in 1946 and operation SANDSTONE in 1948. Furthermore, Radiation Exposure History by the U.S. Department of Energy, National Nuclear Security Administration, indicated that the Veteran was exposed to external radiation at a rate of 108 whole body gamma MREM in 1946 and 40 whole body gamma MREM in 1948. Accordingly, the Board finds that the Veteran was exposed to radiation while he was in service. The Veteran's death certificate lists the cause of death as respiratory failure due to bronchiectasis due to immunoglobulin A deficiency. The appellant submitted a statement dated in November 2017 by N.K., M.D. Dr. N.K. reviewed the Veteran's medical history and indicated that the physician who wrote the death certificate had limited access to the Veteran's medical history and was apparently unaware that he had hypogammaglobulinemia and not an isolated immunoglobulin A deficiency at the time of his death. Dr. N.K. concluded that the Veteran developed secondary hypogammaglobulinemia as a result of radiation exposure during his service in the military at Bikini Atoll during the 1946 nuclear tests (Operation CROSSROADS). Dr. N.K. indicated that ionizing radiation is a known cause of secondary hypogammaglobulinemia and the timing of the Veteran's symptoms, and nature of the disease, are consistent with radiation exposure. More specifically, it was highly likely that as a direct result of the Veteran's radiation exposure he had significant and permanent damage to his bone marrow. The injury to his bone marrow, which is the source of the plasma cells that produce antibodies, caused him to develop hypogammaglobulinemia, which is a severe deficiency of antibody production. Without adequate antibody production, his body lost the ability to resist infection. The Veteran subsequently suffered from lung, gastrointestinal, and skin infections. He developed bronchiectasis, which is frequently seen in patients with hypogammaglobulinemia. Eventually his lungs became so damaged and resulted in hypoxia, which ultimately resulted in his death. Accordingly, Dr. N.K. opined that the Veteran died due to complications of hypogammaglobulinemia, which was more likely than not caused by radiation exposure incurred in service. In light of the above evidence, the Board finds that the Veteran was exposed to radiation in service, which ultimately led to his passing. In this regard, the evidence reveals that the Veteran was assessed with hypogammaglobulinemia in June 1971. From 1961 to August 1977, he had repeated hospital visits for bronchiectasis, hypogammaglobulinemia, and pneumonia secondary to bronchiectasis and hypogammaglobulinemia. Dr. N.K. concluded that the Veteran ultimately died of hypogammaglobulinemia, which was more likely than not caused by his radiation exposure in service. Accordingly, the Board finds that service connection for the cause of the Veteran's death is warranted. The Board acknowledges that the death certificate does not list hypogammaglobulinemia as a cause of death. However, as indicated by Dr. N.K., the medical examiner who issued the Veteran's death certificate did not appear to review the Veteran's file and was unaware that he was exposed to radiation and diagnosed with hypogammaglobulinemia prior to his death. Accordingly, Dr. N.K. concluded that the Veteran died as a result of complications of hypogammaglobulinemia rather than an isolated immunoglobulin A deficiency. In sum, resolving all doubt in favor of the Veteran, the Board finds that the weight of the evidence establishes that the Veteran was exposed to radiation in service, which led to the development of hypogammaglobulinemia and ultimately his death. As such, service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs