Citation Nr: 21069492 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 13-03 723A DATE: November 18, 2021 ORDER Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in November 1993 and his death certificate lists the immediate cause of death as acute leukemia. 2. At the time of his death, the Veteran did not have any disabilities that were service-connected. 3. The Veteran was not exposed to ionizing radiation and did not participate in a "radiation risk activity," including onsite participation in a test involving the atmospheric detonation of a nuclear device. 4. The preponderance of the evidence shows that the Veteran's acute leukemia did not manifest in service or for many years thereafter and is not related to service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113(b), 1310, 5107(b) (2012); 38 C.F.R. §§ 3.5, 3.303, 3.307, 3.309, 3.311, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from October 1951 to September 1954. He died in November 1993. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (ROIC) in Philadelphia, Pennsylvania, which denied the appellant's May 2008 claim of entitlement to service connection for the cause of the Veteran's death. Jurisdiction is with the Atlanta, Georgia Regional Office (RO). The appellant timely filed a notice of disagreement (NOD) in October 2010 and a substantive appeal via a VA Form 9 in February 2013. Preliminarily, the cover letter issued to the appellant accompanying the ROIC's June 2010 rating decision incorrectly indicated that, because of the timing of the termination of the appellant's remarriage, she was not entitled to disability and indemnity compensation (DIC) benefits, death compensation, death pension, and/or accrued benefits, collectively known as death benefits. In particular, that letter stated that "[t]he evidence shows that [the appellant] remarried following the veteran s death, and this remarriage ended by divorce after November 1, 1990. As a result, [the appellant is not] entitled to death benefits." However, although remarriage is generally a bar to eligibility for status as a surviving spouse, there are exceptions to that general rule. See 38 C.F.R. §§ 3.55 (a)(1)-(10); see also 38 U.S.C. §§ 103 (d), 1311(e). In particular, as pertinent to the present claim, 38 C.F.R. § 3.55(a)(3) provides that, on or after October 1, 1998, remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of dependency and indemnity compensation (DIC) benefits, unless the Secretary determines that the divorce or annulment was secured through fraud or collusion. Here, the appellant's remarriage was terminated by divorce in April 2008. Accordingly, by virtue of its termination in April 2008, and absent any finding of fraud or collusion, appellant's remarriage is not a bar to her receipt of DIC benefits. She is therefore entitled to recognition as a surviving spouse of the deceased Veteran and may qualify for certain death benefits. In her February 2013 substantive appeal, the appellant requested a hearing before the Board. One was scheduled for January 24, 2017, and the appellant was notified of the hearing in a November 2016 letter. However, she failed to appear for the hearing and has not provided a reason for her failure to appear. Without good cause shown for the failure to appear, the request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.704 (d) (failure to appear for a scheduled hearing will be processed as though the request for a hearing had been withdrawn). In May 2017, the Board remanded the claim for further development. Service connection for the cause of the Veteran's death 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. 38 C.F.R. § 3.312(a). The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310. Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In a DIC claim based on cause of death, the first requirement for service connection, evidence of a current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). The appellant contends that the Veteran died from acute leukemia that was the result of his exposure to ionizing radiation. Specifically, she contends that in the years before his death, the Veteran told her that while he was stationed in the Marines, he had to be present with his platoon at Atomic testing. He reportedly told her that they were all made to wear special goggles to protect their eyes. Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in three different ways. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, for radiation-exposed veterans who participated in a "radiation risk activity," including onsite participation in a test involving the atmospheric detonation of a nuclear device, there are certain diseases which are presumptively service-connected under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). See 38 C.F.R. § 3.309(d)(3). The enumerated diseases are leukemia (other than chronic lymphocytic leukemia); cancer of the thyroid, breast, pharynx, esophagus, stomach, small intestine, pancreas, bile ducts, gall bladder, salivary gland, urinary tract (including the kidneys, renal pelvis, ureters, urinary bladder, and urethra), bone, brain, colon, lung, or ovary; multiple myeloma; lymphomas (except Hodgkin's disease); primary liver cancer (except if cirrhosis or hepatitis B is indicated); and bronchioloalveolar carcinoma. Second, service connection can be established with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311 if the condition at issue is a "radiogenic disease." The term "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; any cancer; posterior subcapsular cataracts; non-malignant thyroid nodular disease; parathyroid adenoma; tumors of the brain and central nervous system; and lymphomas other than Hodgkin's disease. 38 C.F.R. § 3.311(b)(2). If a claim is based on a disease other than one of those listed in section (b)(2), VA shall nevertheless consider the claim under the provisions of 38 C.F.R. § 3.311 provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. See 38 C.F.R. § 3.311(b)(4). Under section 3.311, in all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. § 3.307 or 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. Finally, with respect to the third means of establishing service connection for a condition claimed to be due to exposure to ionizing radiation, 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 provisions concerning radiation exposure. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation). As noted previously, certain conditions are presumed to be service-connected when they manifest in "radiation-exposed veterans." 38 C.F.R. § 3.309(d). However, the term "radiation-exposed veterans" applies only to veterans who participated in specific radiation-risk activities, including onsite participation in a test involving atmospheric detonation of a nuclear device; certain service in or near Hiroshima or Nagasaki, Japan; service on the grounds of a gaseous diffusion plant in Paducah, Kentucky, Portsmouth, Ohio or in the area identified as K25 at Oak Ridge, Tennessee; service on Amchitka Island, Alaska; and service that would qualify for inclusion as a member of the Special Exposure Cohort if performed as an employee of the Department of Energy. 38 C.F.R. § 3.309(d)(3). The Veteran has not alleged, and the evidence of record does not reflect, that his service included any of the above circumstances. Therefore, he is not a "radiation-exposed veteran" within the meaning of the regulation, and the associated presumptions are not applicable. Nevertheless, although the Veteran does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309 (d)(3), he may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if he suffers from a radiogenic disease and claims exposure to ionizing radiation in service. As noted above, the Veteran died of acute leukemia, included in "all forms of leukemia." 38 C.F.R. § 3.311(b)(2). Thus, the claim will be considered under the provisions of 38 C.F.R. § 3.311. In January 2013 correspondence, the appellant appears to argue that the Veteran was a part of operation BUSTER-JANGLE for the period of October 22, 1951 through December 20, 1951. The appellant submitted medical treatment records which reflect that the Veteran began treatment for leukemia in 1993; 39 years following separation. Pursuant to the May 2017 Board remand, a request was made to the Defense Threat Reduction Agency (DTRA) to obtain any military documents supporting participation in a radiation-risk activity, such as DD Form 214, Certificate of Release of Discharge from Active Duty, or military orders. The DTRA was also asked to provide any specific organization or unit of assignment at the time of exposure, if applicable, any dates of assignment to a nuclear test site, if applicable, and a full description of duties and activities of radiation-risk activity. In May 2020 correspondence, the Department of Navy reported that a review of the exposure registry by name, command, and social security number revealed no reports of occupational exposure to ionizing radiation pertaining to the Veteran. The information provided reflects the data in the Navel Exposure Registry for the Veteran. The reported that the Exposure Registry does not maintain records for nonionizing forms of radiation, such as radar or microwave. They concluded that because the official exposure record (DD 1141, NAVMED 6470/10 or equivalent document) is maintained in the Veteran's medical record, it would be prudent to compare the record with this report. An August 2021 DTRA response made the conclusion that historical records do not document the Veteran's participation in the U.S. atmospheric nuclear testing, as defined by the VA. More specifically, they provided test series/location dates that coincided with the Veteran's unit location and dates as seen below: Test Series/Location/Dates Veteran's Unit/Location/Dates/Remarks Buster Jangle- NTS October 22 to December 20, 1951 Parris Island, South Carolina from October 26, 1951 to January 24, 1952 Annual leave from January 5 to January 14, 1952 Camp Pendleton from January 25 to April 4, 1952 Tumbler-Snapper NTS April 1 to June 20, 1952 Camp Pendleton from April 5 to December 1, 1952 On September 8, the Veteran embarked aboard USS Talladega (APA 208) at Sand Diego, California for TRALEX maneuvers and disembarked on September 12, 1952 at Camp Pendleton On September 30, embarked aboard USS Talladega at San Diego, for PHIBEX maneuvers and disembarked on October 10, 1952, at Camp Pendleton IVY PGG November 1 to December 31, 1952 Annual leave from December 2, 1952 to January 1, 1953 Camp Pendleton from January 2 to February 8, 1953 On January 22, 1953, embarked and departed from San Diego aboard USNS General Nelson M. Walker (T-AP 135) and arrived at Kobe, Japan on February 5. Departed February 6, 1953 and arrived and disembarked on February 8 at Inchon, Korea Korea from February 9, 1953 to January 26, 1954 UPSHOT-KNOTHOLE NTS from March 17 to June 20, 1953 Korea from January 27 to April 4, 1954 CASTLE PPG from March 1 to May 31, 1954 On April 9, 1954, embarked and departed aboard USNS General William M. Black (T-AP 135) at Inchon and arrived at Oakland, California on April 24, 1954. Treasure Island, San Francisco from April 25 to April 29, 1954 Leave from April 30 to June 2, 1954 Navel Base, Philadelphia, Pennsylvania from June 3 to September 23, 1954 Annual leave from August 7 to August 16, 1954 As noted above, the column to the left reflects the Nevada Test Site (NTS) and Pacific Proving Ground (PPG) from 1951 to 1954, the period of the Veteran's active military service. The column to the right shows where the Veteran was stationed during his period of active military service. It is clearly shown that throughout his entire period of active military service, the Veteran was not present at any NTS or PPG sites. Additionally, the DTRA response indicated that they searched available dosimetry data and found no record of radiation exposure for the Veteran. A search of the military personnel records as well as the service treatment records (STRs) likewise do not show any radiation exposure for the Veteran. Since the provisions of 38 C.F.R. § 3.311 are not met, service connection based on the provisions of 38 C.F.R. § 3.311 is not warranted. Aside from the appellant's contention that the Veteran's acute leukemia is related to the claimed radiation exposure, she has not asserted any other reason for how his disability is related to service. Nevertheless, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee, 34 F.3d at 1043-1044. The Veteran's STRs do not reflect a diagnosis, treatment, or symptoms of acute leukemia. The September 1954 separation report of medical examination does not indicate an abnormal clinical evaluation for the Veteran's blood and bone marrow. The appellant does not allege that the Veteran had treatment for, symptoms of, or a diagnosis of leukemia in the years between service and his post-service diagnosis, and he did not relay a diagnosis of his disability during those years. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis). While the appellant reported that the Veteran began to be short of breath two years prior to his diagnosis, even if this was connected to his leukemia in any way, this would still be over 35 years following separation. In other words, there would still be over 35 years following service with no symptoms, treatment, or diagnosis of leukemia. As noted, post-service medical treatment records indicate that the Veteran began treatment for leukemia in 1993, approximately 39 years following separation from active military service. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, is one factor, along with those above, including the normal Reports of Medical Examinations, and the lack of notations relating to symptoms, treatment, or diagnosis relating to the Veteran's leukemia in his STRs, as well as lack of statements indicating continuous symptoms, that can be considered as evidence against the claim. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). To the extent that the appellant's lay statements suggest a relationship between his leukemia and service, this is the type of complex medical issue relating to an internal medical process which extends beyond an immediately observable cause-and-effect relationship as to which lay evidence is not competent. Jandreau, 492 F.3d at 1376, n.4. (Continued on the next page) Furthermore, the appellant has not asserted any other reason for how the Veteran's leukemia is related to service other than his claimed radiation exposure. As there is no evidence indicating that there is leukemia that may be associated with active military, naval, or air service, other than the previously discussed radiation exposure theory, a VA medical opinion is not warranted for this claim. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (a conclusory generalized lay statement alleging nexus between a current disability and service does not meet the standard to warrant a VA examination); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, for the foregoing reasons, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. The benefit of the doubt doctrine is not for application, and entitlement to service connection for this disability is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.