Citation Nr: 1807127	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-03 642	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death, including claimed as due to exposure to ionizing radiation and/or mustard gas.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S.M. Kreitlow



INTRODUCTION

The Veteran had honorable active military service from July 1943 to December 1945.  The Veteran died in May 1981.  The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  The Board notes that the appellant's claim was transferred to the Jackson RO because it handles all radiation-related claims.  Upon completion, it was transferred back to the RO in Louisville, Kentucky, which at that time was the RO closest to where the appellant lived.  During the pendency of her appeal on remand, the appellant moved which resulted in a change in the appellant's Agency of Original Jurisdiction. 

In August 2015 and July 2017, the Board remanded the appellant's claim for additional development.  The Board finds that substantial compliance with the prior remands has been accomplished.  Substantial compliance with a remand order, not strict compliance, is required.  See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999).  Therefore, the Board may proceed forward with adjudicating the appellant's claim without prejudice to her.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 

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).


FINDINGS OF FACT

1.  The Veteran died in May 1981 from carcinomatosis due to or as a consequence of primary squamous cell carcinoma of the lung.

2.  Although the Veteran served in Japan from September to October of 1945, he did not serve in the occupation of Hiroshima or Nagasaki (i.e., within 10 miles of the city limits of either city) and, therefore, was not involved in any radiation-risk activity and was not otherwise exposed to ionizing radiation during his active service.

3.  The evidence of record does not otherwise show that the Veteran was exposed to mustard gas/lewisite or that the cause of his death was otherwise related to his active service.


CONCLUSION OF LAW

Service connection for the cause of the Veteran's death is not warranted.  38 U.S.C. §§ 1110, 1112, 1310, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant seeks entitlement to service connection for the cause of the Veteran's death.  The Veteran died in May 1981.  His death certificate lists the immediate cause of death as carcinomatosis due to or as a consequence of primary squamous cell carcinoma of the lung.  The appellant has raised two theories of entitlement.  She contends that the cancer that caused the Veteran's death was due to his exposure to radiation when he was sent to Hiroshima, Japan, two weeks after the atomic bombs were dropped and was involved in radiation cleanup for two months or, in the alternative, that it was due to exposure to mustard gas.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Shedden v. Principi, 381 F.3d 1163 (Fed.Cir.2004); Hickson v. West, 12 Vet. App. 247 (1999).  For chronic diseases listed in 38 C.F.R. § 3.309(a) the linkage element of service connection may also be established by demonstrating continuity of symptoms since service.  38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir. 2013).  38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases, like malignant tumors, that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. 

38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent.  See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.   38 C.F.R. § 3.159(a)(1).  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(a)(2).

Service connection for a condition, which is claimed to be attributable to ionizing radiation exposure during service, may be established in one of three different ways.  Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997).  A "radiation-exposed veteran" is one who participated in a radiation-risk activity which, by definition, means the onsite participation in a test, or within six months of the test, involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at other certain specified sites.  38 C.F.R. § 3.309 (d)(3).  In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure.

First, there are 15 types of cancer that are presumptively service connected if they become manifest in a "radiation-exposed veteran."  38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d).  Under 38 C.F.R. § 3.309(d), service connection is presumed for certain diseases if they become manifest in a "radiation-exposed veteran," as defined in 38 C.F.R. § 3.309(d)(3)(i).  The diseases entitled to such presumption are leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary gland, cancer of the urinary tract, bronchiolo-alveolar carcinoma, cancer of the bone, cancer of the brain, cancer of the colon, cancer of the lung, and cancer of the ovary.  38 C.F.R. § 3.309(d)(2).  

The second way is to establish service connection on a direct basis after specified development procedures under 38 C.F.R. § 3.311 if the disability is a "radiogenic disease."  38 C.F.R. § 3.311(b) provides a list of "radiogenic diseases" that will be service connected provided that certain conditions specified in that regulation are met.  For the purposes of 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following:  All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; cancer of the thyroid, breast, lung, bone, liver, skin, esophagus, stomach, colon, pancreas, kidney, urinary bladder, salivary gland, and ovary; multiple myeloma; posterior subcapsular cataracts; non-malignant thyroid nodular disease; parathyroid adenoma; tumors of the brain and central nervous system; cancer of the rectum; lymphomas other than Hodgkin's disease; prostate cancer; and any other cancer.  38 C.F.R. § 3.311(b)(2).

To consider service connection under § 3.311, the evidence must show the following: (1) the veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and (3) such disease first became manifest within a period specified by the regulations.  38 C.F.R. § 3.311(b).  If any of the foregoing three requirements has not been met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under § 3.311.  38 C.F.R. § 3.311(b)(1)(iii).  

Third, even if it is not a listed disease under 38 C.F.R. § 3.309 or a radiogenic disease under 38 C.F.R. § 3.311, direct service connection can be established by showing that the disease was incurred during or aggravated by service, including presumptive service connection for chronic disease.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994);

As the Veteran's death with due to primary squamous cell carcinoma of the lung, the Board finds he had both a presumptive disease under in 38 C.F.R. § 3.309(d) and a "radiogenic disease" under § 3.311.  

However, although the Veteran died of an enumerated disease listed in § 3.309(d), the Board finds that he was not a "radiation-exposed veteran" for purposes of presumptive service connection.  The appellant contends that the Veteran served in Hiroshima after the atomic bomb was dropped on radiation cleanup efforts and that he often spoke of the experience.  Although it is shown that the Veteran served in Japan for two months after the 1945 bombings, neither his service personnel records nor the response from the Defense Threat Reduction Agency and United States Strategic Command, Center for Combating Weapons of Mass Destruction, (DTRA) support that he actually served within 10 miles of the city limits of Hiroshima or Nagasaki.  Thus, the Veteran did not participate in a radiation-risk activity.

The Veteran's service personnel records clearly state that he was assigned at the end of August 1945 to temporary duty with the 36th U.S. Naval Construction Regiment until the middle of November 1945 and, during such time, he "[p]articipated in the initial phase of the occupation of Japan in the Osaka-Kobe-Wekayama (sic) Area while on temporary with the 5th Amphibious Force, September and October 1945."  

A request was sent in November 2012 to the DTRA asking for verification of the Veteran's participation in a radiation-risk activity.  The DTRA's response was received in June 2013.  The DTRA stated that, according to his service record, the Veteran "reported to duty with the 302nd NCB at Oahu, Hawaii, on May 12, 1945.  He was assigned temporary duty with the 5th Amphibious Force on August 29 and assigned duty aboard USS LST 610.  This ship arrived at Wakayama, Japan (approximately 155 miles from Hiroshima and 315 miles from Nagasaki) on September 27.  USS LST 610 departed Wakayama on October 12 for the Philippines.  [Veteran] detached from USS LST 610 on October 24 and reported to Port Director, Subic Bay, The Philippines.  He returned to duty with the 302nd NCB at Oahu on November 14....  In summary, historical records do not document [Veteran's] presence with the American occupation forces in Hiroshima or Nagasaki, Japan, as defined by VA."

For purposes of presumptive service connection, occupation of Hiroshima or Nagasaki, Japan, by United States forces means official military duties within 10 miles of the city limits of either city 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).  

As the military records show that the Veteran did not have service within 10 miles of the city limits of either Hiroshima or Nagasaki, the Board cannot find that he was a "radiation exposed veteran" for purposes of presumptive service connection under § 3.309(d).  Consequently, the Board must find that the preponderance of the evidence is against findings that service connection on a presumptive basis is warranted.

As for service connection pursuant to § 3.311, the appellant has not contended that the Veteran had any type of radiation exposure other than that he was in Hiroshima, which the Board has already found not to be supported by the record.  Consequently, the Board finds that, although the Veteran died of a radiogenic disease, the preponderance of the evidence is against finding that he was exposed to ionizing radiation in service.  Therefore, no further development is warranted and the claim must be denied on this theory of entitlement as well.

Based on the foregoing, the Board finds that the preponderance of the evidence is against finding that the cause of the Veteran's death is due to ionizing radiation and, therefore, service connection is not warranted on that basis.

The appellant also contends that the Veteran was exposed to mustard gas during service and that the cause of his death is related thereto.  

Claims based on the chronic effects of exposure to mustard gas are governed by the provisions of 38 C.F.R. § 3.316.  Those provisions are as follows:

(a) Except as provided in paragraph (b) of this section, exposure to the specified vesicant agents during active military service under the circumstances described below, together with the subsequent development of any of the indicated conditions, is sufficient to establish service connection for that condition:

(1) Full-body exposure to nitrogen or sulfur mustard during active military service together with the subsequent development of chronic conjunctivitis, keratitis, corneal opacities, scar formation, or the following cancers: nasopharyngeal, laryngeal, lung (except mesothelioma), or squamous cell carcinoma of the skin. 

...

(b) Service connection will not be established under this section if the claimed condition is due to the veteran's own willful misconduct, or if there is affirmative evidence that establishes a nonservice-related supervening condition or event as the cause of the claimed condition. 

38 C.F.R. § 3.316 .

For claims involving exposure to mustard gas, the claimant must prove evidence of in-service exposure, and a diagnosis of current disability, but is relieved of the burden of providing medical evidence of a nexus between the current disability and the in-service exposure.  Rather, that nexus is presumed if the other conditions are met subject to the regulatory exceptions in § 3.316(b).  38 C.F.R. § 3.316; see also Pearlman v. West, 11 Vet. App. 443, 446 (1998).

The Board remanded the appellant's appeal in July 2017 to assist her in developing this contention.  In August 2017, a request was sent to VA's Compensation Service for confirmation of exposure to a mustard agent or lewisite.  According to the September 2017 response, the Department of Defense (DoD) did not find the Veteran's name in the DoD/VA Chemical Biological Exposure system and, therefore, could not confirm the appellant's claim based upon its review of the supporting documentation that the Veteran was exposed at any of his assigned locations during service to mustard gas or lewisite, or that he was involved in Project 112/SHAD.  Hence, the preponderance of the evidence fails to demonstrate that the Veteran was exposed to mustard gas during his active military service, and the Board finds that service connection on that basis is not warranted.

Finally, the Board notes that the appellant does not contend, nor has she provided evidence to establish, that the Veteran's lung cancer manifested during service; or within the first year following separation from service; or that he experienced symptoms of lung cancer continuously between the time he separated from service and his death in May 1981; or that his lung cancer was otherwise related to service.  The appellant indicated she was unable to obtain any of the Veteran's medical records relating to his treatment for his lung cancer due to the passage of time and, therefore, no medical records have been provided to establish the onset of that disability.  The Veteran's service treatment records do not show any evidence of lung cancer at the time of his discharge in December 1945.  Examination of the respiratory was noted to be normal, and photofluoroscopic examination of the chest was negative.  The Veteran was found to be physically qualified for discharge.  Consequently, the Board finds that the preponderance of the evidence is against finding that the cause of the Veteran's death was otherwise related to his military service.

After considering all the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection for the cause of the Veteran's death is warranted.  The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  Service connection is, therefore, denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for the cause of the Veteran's death is denied.




____________________________________________
M.C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs