Decision Date: 11/22/95 Archive Date: 11/21/95 DOCKET NO. 89-24 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for cancer of the adrenal glands for accrued benefits purposes. 2. Entitlement to service connection for parotid gland cancer and liver cancer for accrued benefits purposes. 3. Entitlement service connection for lung cancer with metastasis to multiple sites for accrued benefits purposes. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for colon cancer due to radiation exposure for accrued benefits purposes. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran had active service from October 1943 to March 1946 and from October 1950 to January 1951. This matter came to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In an August 1991 decision the Board denied entitlement to service connection for the cause of the veteran's death and found that the issue of accrued benefits was not properly before it. The appellant, who is the veteran's widow, appealed the Board decision to the United States Court of Veterans Appeals (Court). In a memorandum decision, the Court affirmed that part of the Board's decision denying service connection for the cause of the veteran's death and remanded the issue of entitlement to accrued benefits for proceedings consistent with its decision. In August 1993 and October 1994, the Board remanded the case for additional development. The Board's October 1994 remand included the request that the RO adjudicate the raised issue of whether there was new and material evidence to reopen the claim of entitlement to service connection for the cause of the veteran's death. In a July 1995 rating decision, the RO determined that new and material evidence had not been submitted to reopen the claim for service connection for the cause of the veteran's death. In a July 1995 letter, the RO informed the appellant of that decision and of her right to appeal. The appellant had not appealed the decision at the time the case was returned to the Board, and that issue is not now before the Board. Evidence in, or that may be deemed in, the claims file at the date of the veteran's death may raise the issue of entitlement to service connection for cancer of the rectum for accrued benefits purposes. The RO should clarify whether the appellant wishes to pursue this claim. If so, the RO should take appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant claims entitlement to service connection for cancer of the adrenal glands, parotid gland cancer, liver cancer, lung cancer and colon cancer for accrued benefits purposes and contends that these cancers were caused by the veteran's exposure to ionizing radiation in service. The appellant contends that the veteran's cancer could have originated in his liver, adrenal glands or parotid gland. She points out that the veteran suffered from cancer long before he had lung cancer and argues that there is a distinct possibility that lung cancer was not the originating cancer. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the claim for service connection cancer of the adrenal glands for accrued benefits purposes is not well grounded. It is also the decision of the Board that the preponderance of the evidence is against the claims for service connection for parotid gland cancer and liver cancer for accrued benefits purposes and that the preponderance of the evidence is against the accrued benefits claim for service connection for lung cancer with metastases to multiple sites. Finally, it is the decision of the Board that new and material evidence has not been presented to reopen the claim for service connection for accrued benefits purposes for colon cancer due to radiation exposure. FINDINGS OF FACT 1. The claim for service connection for cancer of the adrenal glands for accrued benefits purposes is not plausible. 2. The presence of primary cancer of the parotid gland or liver has not been demonstrated. 3. There has been no demonstration of a causal relationship between the veteran's lung cancer with metastases to multiple sites, first shown many years after service, and any incident of service, including the ionizing radiation to which he was exposed during service. 4. In an August 1985 decision the Board denied service connection for colon cancer on a direct and presumptive basis finding that it was not due to exposure to radiation in service and in an October 1987 reviewed the radiation aspect of the claim on a de novo basis finding that cancer of the colon could not be associated with the veteran's in- service radiation exposure. 5. Evidence added to the record since the October 1987 decision includes that which duplicates or is cumulative of evidence previously of record; new evidence added to the record is relevant but is not probative of the claim for service connection for colon cancer due to radiation exposure in that it does not tend to establish a causal relationship between the veteran's exposure to ionizing radiation in service and his claimed colon cancer. CONCLUSIONS OF LAW 1. The claim for service connection for cancer of the adrenal glands for accrued benefits purposes is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The requirements for accrued benefits based on service connection for parotid gland cancer and liver cancer have not been met. 38 U.S.C. §§ 301, 310, 312 (1988) (renumbered 1101, 1110, and 1112 respectively); 38 U.S.C.A. § 5121(a) (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311b (1988). 3. The requirements for accrued benefits based on service connection for lung cancer with metastasis to multiple sites have not been met. 38 U.S.C. §§ 301, 310, 312 (1988) (renumbered 1101, 1110 and 1112 respectively); 38 U.S.C.A. § 5121(a) (West 1991); 38 C.F.R. § 3.303, 3.307, 3.309, 3.311b (1988). 4. Evidence received since the October 1987 Board decision denying entitlement to service connection for colon cancer due to ionizing radiation exposure is not new and material, and the claim for service connection for colon cancer due to ionizing radiation exposure is not reopened for accrued benefits purposes. 38 U. S. C. § 3008 (1988) (renumbered 5108); 38 U.S.C.A. § 5121 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the provisions of 38 U.S.C.A. § 5121, as relevant here, a veteran's surviving spouse may receive accrued benefits consisting of up to one year of due but unpaid benefits to which the veteran was entitled at death under existing ratings or decisions, or those benefits to which he was entitled based on evidence in the file at date of death. The Court has made clear that under the statute and the regulation implementing it, 38 C.F.R. § 3.1000, the substance of the survivor's claim is purely derivative from any benefit to which the veteran might have been entitled at his death, and basically, the survivor cannot receive any such attributed benefit that the veteran could not have received upon proper application therefor. Zevalkink v. Brown, 6 Vet.App. 483 (1994). It follows that substantive law and regulations in effect at the time of the veteran's death are those applicable to the accrued benefits claims. Evidence that may be considered "in the file" at the date of death includes service department records, reports of VA hospitalization, reports of treatment or examinations in VA medical centers including those in outpatient folders, and reports of hospitalization, treatment or examinations authorized by VA. VA's Veterans Benefits Manual, M21-1, Part VI, para. 5.25(a) (Change 3 Sept. 21, 1992) and VA's Veterans Benefits Manual, M21-1, Part VI, para. 5.27 (Change 34, May 8, 1995) (address accrued ratings, evidentiary requirements and evidence in file at date of death); see Hayes v., Brown, 4 Vet.App. 352, 360-61 (1993) (holding, in part, that to the extent provisions of VA's Veterans Benefits Manual, M21-1, affect what post-date-of-death evidence may considered, they have the force of law). With reference to the Hayes decision, VA's Veterans Benefits Manual, M21-1, Part VI, para. 5.27 (Change 34, May 8, 1995) also explicitly includes medical reports which conform to the requirements of 38 C.F.R. § 3.327(b)(1) as among those "in file" at date of the veteran's death even if not reduced to writing or physically placed in the claims file until after death. As of March 1993, the date of the Hayes decision, 38 C.F.R. § 3.327(b)(1), which deals with scheduling a reexamination in a compensation case, provided that any hospital report and any examination report from a military hospital or from a State, county, municipal, or other government hospital or recognized private institution which contains descriptions, including diagnoses and clinical and laboratory findings, adequate for rating purposes, of the condition or the organs and body systems for which claim is made may be deemed to be included in the term "Department of Veterans Affairs examination." In view of this change, records and resumés of hospitalization from Arnot-Ogden Memorial Hospital received subsequent to the veteran's death are identified by date of receipt in the discussion that follows and will be considered to have been in the file at the date of the veteran's death. The veteran's service medical records, including separation examination reports dated in March 1946 and December 1950, contain no complaints, treatment, abnormal findings or diagnoses concerning his liver, parotid gland or adrenal glands. Unit sheets from Arnot-Ogden Memorial Hospital summarizing information concerning hospital admissions for the veteran dating from 1943 to 1984 show that the veteran underwent a liver scan in January 1978. The record does not include a report of the results of that procedure. A history from the Arnot-Ogden Memorial Hospital shows that the veteran was admitted in September 1988 with a three-year history of left parotid gland enlargement that had recently increased in size and was causing discomfort. It was noted that the veteran's history included resection of colon cancer in 1978 with colostomy. Examination showed swelling in the left parotid gland area with some firmness and tenderness in the area consistent with tumor within the gland. The assessment included left parotid mass and tumor, and the veteran was admitted for a left superficial parotidectomy. In a September 1988 pathology report from the same hospital it was reported that the clinical and histologic features of the soft tissue sample from the left parotid gland conformed with the description of anaplastic carcinoma of salivary gland, and the diagnosis was anaplastic small cell carcinoma of parotid gland. The pathologist stated that in view of the rarity of tumors of this sort, the tumor was being sent out for consultation. A resumé of hospitalization from Arnot-Ogden Memorial Hospital, received in February 1995, shows that the veteran was hospitalized in September 1988 with a history of a nontender swelling on the left side of the face over the previous several months. He also had a history of a colectomy in 1978 for colon cancer. During the September 1988 hospitalization a left superficial lobe parotidectomy was performed, and it was noted that the pathologist reported anaplastic carcinoma of the salivary gland. This was confirmed by a physician from another hospital, and slides were sent out for further review. The final diagnosis reported on the resumé was small cell carcinoma of the left parotid. In an October 1988 report of chest X-rays performed in Arnot-Ogden Memorial Hospital, the radiologist noted an abnormal density in the region of the left main pulmonary artery and ductus arteriosus which appeared to be extending into the anterior mediastinum. The physician stated that this had developed since a normal chest film of 1987 and was highly suspicious for bronchogenic carcinoma and recommended computerized tomography (CT) scan for confirmation. In the report of CT scans of the chest and abdomen done a few days later, the radiologist noted a lobulated, partially calcified anterior mediastinal mass merging with the left lateral aspect of the aortic arch and extending inferiorly into the aorticopulmonary window. He stated there was contiguous infiltration of the lung, and the mass appeared to be involving contiguous portions of the lung and mediastinum suggesting lung origin with extension into the mediastinum. The radiologist stated that in the CT of the abdomen he identified multiple low-density areas throughout the liver compatible with metastatic disease. He also stated that both adrenal glands were moderately enlarged, compatible with metastatic disease. In a pathology report from the same hospital dated later in October 1988, the pathologist stated that microscopic examination of a liver needle biopsy showed malignant invasion by poorly differentiated tumor of epithelial origin. The diagnosis was small cell anaplastic (oat cell) carcinoma. A history from Arnot-Ogden Memorial Hospital, also received in February 1995, shows that the veteran was hospitalized in mid-October 1988 for evaluation and chemotherapy for metastatic oat cell carcinoma of the lung. It was noted that slides from a parotidectomy had shown the effects of oat cell carcinoma and subsequent work up had revealed that the veteran had a left hilar mass extending into the mediastinum along with multiple liver metastases which were biopsied and turned out to be oat cell carcinoma. The reporting physician stated that the veteran obviously had metastatic oat cell carcinoma. The final diagnosis was metastatic oat cell carcinoma of the lung. A resumé of hospitalization, again from Arnot-Ogden Memorial Hospital and received in February 1995, shows that the veteran was hospitalized in late October 1988 because of high fever and marked weakness. The attending physician reported that the veteran was known to have extensive metastatic carcinoma of the lung, oat cell variety, with extensive metastatic disease in his liver, lungs and left parotid gland. During this hospitalization he was initially given aggressive antibiotic therapy for septicemia. He was discharged in November 1988, and the final diagnoses were sepsis and metastatic oat cell carcinoma of the lung. A history from Arnot-Ogden Memorial Hospital shows the veteran was admitted in November 1988 for resumption of chemotherapy. It was noted that he had extensive oat cell carcinoma of the left chest, left neck, parotid gland, bones and liver. The physician stated that the veteran also had a history of cancer of the colon which was in the rectosigmoid region for which he had an abdominoperineal resection in 1978. After examination, the final diagnosis was metastatic carcinoma of the lung, oat cell variety, with improvement. Reports of CT scans taken at Arnot-Ogden Memorial Hospital in November and December 1988 were also received in February 1995. The diagnoses following the November CT scans of the brain, neck, chest and abdomen included decrease in size of the left hilar aorticopulmonary mass; decrease in the metastatic lesions involving the liver; appearance of a small peripheral intrapulmonary nodule left upper lobe; right adrenal metastasis smaller, left adrenal metastasis unchanged; and presumed abscess formation left parotid region. In the report of December 1988 CT scans of the chest and abdomen it was noted that there was continued improvement in the mass in the aorticopulmonary window and the peripheral nodule in the left upper lobe had decreased in size. Lesions were noted in the liver, and the physician stated that the left adrenal mass was smaller than on the previous exam while the slight enlargement on the right adrenal was unchanged. The opinion was overall improvement in the metastatic lesions in the chest and abdomen. Also received in February 1995 was the resumé of the veteran's terminal hospitalization at Arnot-Ogden Memorial Hospital, showing the veteran was hospitalized in February 1989 and expired in March 1989. The attending physician noted that the veteran had a history of metastatic oat cell carcinoma and had extensive disease in the liver, bones, and soft tissue. He stated that the tumor almost totally disappeared, but the veteran progressively went downhill secondary to metastatic disease to the brain. The final diagnoses were metastatic carcinoma of the lung with diffuse bone, liver and soft tissue metastases and arteriosclerotic heart disease. The Certificate of Death shows that the veteran died in March 1989 and indicates that the veteran's death was caused by metastatic lung cancer, with six months listed as the approximate interval between onset and death. The threshold question for the Board with respect to the appellant's service connection claims is whether those claims are well grounded, that is, whether they are plausible and meritorious on their own or capable of substantiation. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet.App. 78, 81 (1990). The appellant contends, in effect, that the cancer found in the veteran's parotid gland, liver and adrenal glands originated in those locations, making them primary cancers for which service connection could be granted, and that all the cancers, including lung cancer, were due to the veteran's radiation exposure in service. The Court has stated repeatedly that 38 U.S.C.A. § 5107(a) unequivocally places an initial burden on a claimant to produce evidence that a claim is well grounded. See Grivois v. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). The Court has stated that the quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit at 92-93. Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Id. With respect to cancer of the adrenal glands, the only evidence including mention of the adrenal glands does so in the context of metastatic disease. In the October 1988 CT scan report, the physician found bilateral adrenal metastases, and in later scans in November and December 1988 the metastases were noted to have become smaller. "Metastasis" is the "transfer of a disease-producing agency (as cancer cells ...) from an original site of disease to another part of the body with development of a similar lesion in the new location." Monts v. Brown, 4 Vet.App. 379, 381 (1993) citing Webster's Medical Desk Dictionary 430 (1986). Although the appellant has argued that cancer may have originated in the veteran's adrenal glands, she is not competent to offer evidence requiring medical knowledge, such as that required to identify different kinds of cancer. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Because the fact asserted is beyond the competence of the person making the assertion, it is an exception to the rule that evidentiary assertions must be accepted as true for the purpose of determining whether a claim is well grounded. King v. Brown, 5 Vet.App. 19, 21 (1993). Thus, the appellant's lay assertion as to medical causation cannot constitute evidence to render her claim well grounded under 38 U.S.C.A. § 5107(a). Grottveit at 93. As there is no cognizable evidence that the veteran ever had primary cancer of the adrenal glands, the appellant's claim for service connection for cancer of adrenal glands for accrued benefits purposes cannot be well-grounded. Although the Board has considered and disposed of the claim for service connection for cancer of the adrenal glands for accrued benefits purposes on grounds different from that of the RO, which denied the claim on the merits, the appellant has not been prejudiced by the Board's decision. This is because in assuming that the claim was well grounded, the RO accorded the appellant greater consideration than the claim in fact warranted under the circumstances. Bernard. v. Brown, 4 Vet.App. 384, 392-94 (1993). To remand to the RO for consideration of the issue of whether the claim is well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to the appellant. VA O.G.C. Prec. Op. 16-92, 57 Fed. Reg. 49,747 (1992). The Board turns next to the issues of entitlement to service connection for parotid gland cancer and liver cancer for accrued benefits purposes. Review of the evidence outlined earlier shows that it includes a September 1988 pathology report in which the veteran was diagnosed as having anaplastic small cell carcinoma of the parotid gland (also referred to as anaplastic carcinoma of the salivary gland in a September 1988 hospital report). The evidence also includes an October 1988 pathology report showing that following microscopic examination of tissue from a liver biopsy, the diagnosis was small cell anaplastic (oat cell) carcinoma. Thus, there is evidence that the veteran may have had parotid gland cancer and liver cancer. This, along with a July 1986 letter from the United States Marine Corps Project Coordinator, Nuclear Test Personnel Review, providing ionizing radiation dose information for the veteran and verification that he participated in the American occupation of Nagasaki, Japan, prior to July 1, 1946, (in the file at the date of the veteran's death) is sufficient to make well-grounded the claims that the veteran had parotid gland cancer and liver cancer due to exposure to ionizing radiation in service. That is, medical evidence that the veteran may have had parotid cancer and liver cancer, both radiogenic diseases under the provisions of 38 C.F.R. § 3.311b as it was in effect at the time of the veteran's death, and the evidence that the veteran was exposed to radiation in service make the claims plausible, and thus well grounded under 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant facts with respect to these claims have been properly developed to the extent possible and that no further assistance to the appellant is required to comply with 38 U.S.C.A. § 5107(a). In general, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury or disease. 38 U.S.C. § 310 (now § 1110); 38 C.F.R. § 3.303. Where a veteran served 90 days or more during a period of war and a malignant tumor becomes manifest to a degree of 10 percent within 1 year from the date of service separation, the disease shall be presumed to have been incurred in service even though there is no evidence of the disease during service. 38 C.F.R. § 3.307, 3.309. In addition, service connection may be granted for any disease 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). It is, as has been repeated earlier, the appellant's contention that the veteran had parotid gland cancer and liver cancer and that these diseases were caused by his exposure to ionizing radiation in service. Review of the record shows that there is no indication, nor does the appellant contend, that there was complaint, treatment or finding indicating the possible presence of parotid gland cancer or liver cancer until 1988, many years after service and more than 40 years after the veteran's exposure to radiation in service as a participant in the American occupation of Nagasaki, Japan, in 1945. The evidence does show that in September 1988 the veteran was diagnosed as having anaplastic small cell carcinoma of the parotid gland (also referred to as anaplastic carcinoma of the salivary gland in a September 1988 hospital report). Also, there is an October 1988 pathology report showing that following microscopic examination of tissue from a liver biopsy, the diagnosis was small cell anaplastic (oat cell) carcinoma, suggesting the presence of liver cancer. However, this evidence is outweighed by the multiple CT scan reports and reports of later hospitalizations during the remainder of 1988 and up to the veteran's death in March 1989 which refer to the lesions in the parotid gland and liver as metastatic from cancer of the lung and show that the conclusion of the attending oncologist was that the veteran had lung cancer with metastases to multiple sites including the liver and parotid gland. Thus, the Board finds that the presence of neither primary parotid gland cancer nor primary liver cancer has been demonstrated. There is, therefore, no basis upon which service connection for parotid gland cancer or liver cancer for accrued benefits purposes may be granted. The appellant is also claiming entitlement to service connection for lung cancer for accrued benefits purposes. In view of the evidence outlined above, which shows not only that the veteran had lung cancer that metastasized to multiple sites, the issue is properly framed as entitlement to service connection for lung cancer with metastases to multiple sites for accrued benefits purposes. Further, given the evidence concerning the veteran's radiation exposure in service, and the inclusion of lung cancer as a potentially radiogenic disease in 38 C.F.R. § 3.311b as it was in effect at the date of the veteran's death, the claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). Again, the Board is satisfied that all relevant facts have been properly developed and that no further assistance to the appellant is required to comply with 38 U.S.C.A. § 5107(a). Evidence in, or deemed in, the file at the veteran's death included his service medical records along with the post- service hospital records described in detail earlier. The record also included the United States Marine Corps Project Coordinator, Nuclear Test Personnel Review, July 1986 ionizing radiation dose estimate for the veteran and verification that he participated in the American occupation of Nagasaki, Japan, prior to July 1, 1946, and memoranda from the VA Assistant Associate Deputy Chief Medical Director and the Director, VA Compensation and Pension Service obtained pursuant to development procedures outlined in 38 C.F.R. § 3.311b. The medical evidence does not show, nor does the appellant contend, that there was complaint, treatment or finding indicating the presence of lung cancer until many years after service. Records from Arnot-Ogden Memorial hospital show that in October 1988 the veteran was diagnosed as having lung cancer with metastases to multiple sites. Under the provisions of 38 C.F.R. § 3.303(d), service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. However, the preponderance of the evidence is against a grant of service connection for lung cancer with metastasis to multiple sites under this regulation. There was no indication of lung cancer or any metastatic disease in service, and there is no medical opinion or other evidence linking the veteran's lung cancer to service. A grant of presumptive service connection for lung cancer with metastases to multiple sites is likewise precluded under 38 C.F.R. §§ 3.307, 3.309(a) because the evidence fails to show that the cancer was manifested within one year after service. The appellant contends that the veteran's lung cancer with metastases to multiple sites was caused by his exposure to ionizing radiation during service, and the evidence shows that the veteran participated in the occupation of Nagasaki, Japan, prior to July 1946. At the time of the veteran's death in March 1989, lung cancer was not (and is not now) among the diseases subject to presumptive service connection on a radiation basis under 38 U.S.C. § 312 (now § 1112) and 38 C.F.R. § 3.309(d). Lung cancer was, and is, a potentially "radiogenic" disease under 38 C.F.R. § 3.311b. However, the demonstration of a potentially radiogenic disease and exposure to ionizing radiation during service does not in and of itself establish entitlement to service connection. The Board must consider all relevant factors, including the amount of radiation exposure, in determining whether the record supports the contended etiologic relationship. In his July 1986 letter, the United States Marine Corps Project Coordinator, Nuclear Test Personnel Review, noted that the veteran had reported that while in Japan he remained in the vicinity of Nagasaki for about six weeks. The Project Coordinator stated that records showed that the veteran arrived at Nagasaki on Kyushu Island on September 23, 1945, and that it was presumed that the veteran remained in Nagasaki from September 23, 1945, to December 31, 1945, about 13 weeks. On December 31, 1945, his unit was transferred to Sasebo, Kyushu Island, and the veteran departed Kyushu Island via Sasebo in February 26, 1946. The Project Coordinator stated that Defense Nuclear Agency (DNA) physicists had determined that the worst case radiation dose for occupation troops was 0.63 rem but that the veteran's estimated exposure to weapon-induced ionizing radiation was 0.044 rem. This was the calculated external radiation dose for personnel who arrived at Nagasaki harbor on September 23, 1945, spent one-third of their tour of duty in the vicinity of ground zero, and departed Nagasaki on December 31, 1945. It was also stated that the 50-year bone dose commitment (internal dose) for personnel who were in Nagasaki between September 23, 1945, and December 31, 1945, was zero rem. It was also noted that the veteran was not exposed to neutron radiation because he did arrive in the vicinity of Nagasaki until more than six weeks after the detonation of the nuclear weapon at that location. In a July 1990 memorandum, the VA Acting Associate Deputy Chief Medical Director responded to a request for review of the veteran's record under the provisions of 38 C.F.R. § 3.311b. The Acting Associate Deputy Chief Medical Director noted that the veteran's radiation exposure would have occurred when he was 27 years old and that he received a probable dose of 0.044 rem gamma. Citing CIRRPC Scientific Panel Report No. 6 (1988), he stated that it was calculated that exposure to 41.8 rad or less at age 27 provides a 99 percent credibility that there is no reasonable possibility that it is as likely as not that the veteran's lung cancer, if it was not metastatic, was related to his exposure to ionizing radiation. He noted that the veteran's dose was much lower than the cited value and concluded it is highly unlikely that his lung cancer can be attributed to exposure to ionizing radiation in service. The Board notes that the same conclusion follows with consideration of the worst case exposure of 0.63 rem. That is, 0.63 rem is also far lower than 41.8 rad, and with a 0.63 rem exposure there would also be no reasonable possibility that it is as likely as not that the veteran's lung cancer was related to his exposure to ionizing radiation. The VA Compensation and Pension Service Director provided an Advisory Opinion - Radiation Review Under 38 C.F.R. § 3.311b. In that opinion, dated in July 1990, he stated that as a result of the medical opinion from the Acting Associate Deputy Chief Medical Director, and following review of the evidence in its entirety, it was his opinion that there is no reasonable possibility that the veteran's lung cancer was the result of his exposure to radiation in service. Following review of the record, it is the Board's judgment that the preponderance of the evidence is against the appellant's claim of a causal connection between the veteran's lung cancer and radiation exposure in service. In support of this conclusion, the Board notes that DNA physicists have determined that the worst case or highest level of radiation exposure for the veteran was 0.63 rem gamma. There is no medical opinion of record linking the veteran's radiation exposure to the development of lung cancer. On the other hand, the opinion of the VA Acting Associate Deputy Chief Medical Director, which is based on a quantitative analysis, is clearly against the appellant's claim. It presents quantitative analysis from a scientific study, and, although it specifically considers the reconstructed probable dose estimate rather than the worst case estimate, it compels the conclusion that there is no reasonable possibility that the veteran's lung cancer was caused by in-service radiation exposure. The Board, therefore, has given great weight to this well-reasoned medical opinion. For the foregoing reasons, the Board concludes that service connection for lung cancer with metastases to multiple sites for accrued benefits purposes is not warranted. Turning to the issue of whether new and material evidence has been presented to reopen the claim of entitlement to service connection for colon cancer due to radiation exposure for accrued benefits purposes, the record shows that in an August 1985 decision the Board denied service connection for colon cancer. The Board found that colon cancer was not present in service, was not manifested to a compensable degree within a year following separation from service and was not due to asserted radiation exposure in service. In its decision, the Board referred to August 1980 DNA reports documenting on-site surveys after the atomic bombings of Hiroshima and Nagasaki which showed that the residual radioactivity in and around Hiroshima and Nagasaki at the time the occupation forces arrived was so low as to present a negligible health hazard. Evidence of record in August 1985 when the Board denied service connection for colon cancer included the veteran's service medical records, the unit sheets dated from May 1943 to May 1984 from Arnot-Ogden Memorial Hospital, an August 1957 report of X-ray studies of the colon from Arnot-Ogden Memorial Hospital, resumés of hospitalization from the same hospital for hospitalization in March and April 1978, in January 1980 and in April and May 1984, a May 1984 letter from Ralph S. Canter, M.D., and an August 1984 letter from Swen Larson, M.D. The service medical records include no complaint, finding or diagnosis concerning colon cancer. The August 1957 X-ray report from Arnot-Ogden Memorial Hospital indicates that examination of the colon showed moderate spasm of the left colon, and no lesion was found. In his August 1984 letter, which is a resumé of his treatment and findings concerning the veteran over the period November 1946 to December 1976, Dr. Larson mentioned the veteran's colon only to say that X- ray studies were done in August 1957 and were reported negative. The unit sheets from Arnot-Ogden Memorial Hospital summarize information concerning hospital admissions for the veteran dating from 1943 to 1984 and show that the veteran was hospitalized in January 1978. The diagnosis and operation listed were adenocarcinoma of rectosigmoid; sigmoidoscopy and abdominal perineal resection rectosigmoid. Dr. Canter was identified as the surgeon. Carcinoma of colon - post resection is among the diagnoses listed in the unit sheet entry for hospitalization in March and April 1978. The unit sheets list an admission in January 1980 when the diagnoses listed include carcinoma rectum, resected. The resumé of hospitalization from Arnot-Ogden Memorial Hospital reporting the March and April 1978 hospitalization shows that the veteran was admitted with complaints of chest pain. His discharge diagnoses included post resection of the colon for carcinoma. In January 1980, the veteran was admitted to the same hospital for an arteriogram, and it was noted at that time that his history included resected carcinoma of the rectum. The resumé of hospitalization from Arnot-Ogden Memorial Hospital for hospitalization from April to May 1984 shows that the veteran underwent repair of a right ventral incisional hernia and revision of his colostomy with repair of a large left ventral hernia around the colostomy site. Dr. Canter, who prepared the resumé, stated that the veteran had had abdomino-perineal for carcinoma of the rectum approximately seven years earlier. In his May 1984 letter, Dr. Canter stated that the veteran had had an abdominal perineal resection for carcinoma in January 1978. In January 1986, the veteran requested that his claim be reviewed under regulations issued by VA under the Veterans' Dioxin and Radiation Exposure Compensation Standards Act. In support of his claim, the veteran provided information concerning his assignment and duties in Nagasaki, Japan, during service. In a June 1986 letter, the RO requested that the Commandant of the Marine Corps confirm the veteran's presence and nature of his duties at Nagasaki and also requested that radiation dose information be provided. The United States Marine Corps Project Coordinator, Nuclear Test Personnel Review, responded with his July 1986 letter and, as described earlier, confirmed the veteran's presence and duties in Nagasaki and reported that the calculated external radiation dose received by the veteran was 0.044 rem and that the worst case radiation dose for occupation troops was 0.63 rem. In a November 1986 memorandum, the Director, VA Compensation and Pension Service stated that following review of the evidence in its entirety, he found there was no reasonable possibility that the veteran's carcinoma of the colon resulted from radiation exposure in service. In its October 1987 decision, the Board reviewed the veteran's claim for service connection for colon cancer due to radiation exposure on a de novo basis with consideration of the provisions of 38 C.F.R. § 3.311b which had become effective in September 1985. The Board found that the evidence did not show that cancer of the colon could be associated with the veteran's in-service radiation exposure. The claim for service connection for colon cancer due to radiation exposure, last denied on the merits by the Board in its October 1987 decision, could be reopened for accrued benefits purposes if new and material evidence were presented. New evidence is evidence that is not merely cumulative of other evidence in the record at the time the claim was denied on the merits. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); see Glynn v. Brown, 6 Vet.App. 523, 528-29 (1994). Evidence is material where it is relevant to and probative of the issue at hand and where there is a reasonable possibility that, when viewed in the context of all the evidence, both new and old, it would change the outcome. Wilkinson v. Brown, No. 93-1203 (U.S. Vet. App. Oct. 20, 1995); Blackburn v. Brown, 8 Vet. App. 97, 102 (1995) (citing Sklar v. Brown, 5 Vet.App. 140, 145 (1993). Further, for the purpose of determining whether a claim should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). In addition to the records from Arnot-Ogden Memorial Hospital dated in 1988 and 1989 which focused on the diagnosis and treatment of the veteran's lung cancer with metastases to multiple sites and were described earlier, other evidence from that hospital added to the record, and also deemed in the file at the veteran's death, includes a resumé of hospitalization for the veteran's hospitalization in January 1978 and signed by Dr. Canter. He stated that the veteran had been admitted by his personal physicians and had been examined in their office and found to have a lesion of the rectum. Dr. Canter stated that this was confirmed by sigmoidoscopy and biopsy, showing adenocarcinoma of the rectum. He also stated that this was sufficiently low to rule out anterior resection and that the veteran underwent an abdominal perineal resection. Dr. Canter stated that the findings were adenocarcinoma, without evidence of spread. Another resumé of hospitalization added to the record shows the veteran was hospitalized at Arnot-Ogden Memorial Hospital in September 1979 and underwent treatment of small bowel obstruction and lysis of adhesions obstructing the proximal small bowel. Dr. Canter, who prepared the resumé, noted that the veteran had undergone an abdomino-perineal resection for carcinoma of the rectum about 1˝ years earlier, and there was no evidence of recurrent carcinoma. Also added was a history related to an admission for a laryngoscopy in June 1982 in which it was noted by Dr. Canter that the veteran had an adenocarcinoma of the rectosigmoid treated 4 years earlier with abdominal perineal resection. Duplicates of resumés of hospitalization for periods of hospitalization in March and April 1978 and April and May 1984 were also added to the record. Other records from Arnot-Ogden Memorial Hospital added to the record concern treatment of the veteran from the 1960s to the 1980s for other diseases and disorders and are not relevant to the colon cancer claim. Also added to the record was the July 1990 memorandum from the VA Acting Associate Deputy Chief Medical Director produced pursuant to 38 C.F.R. § 3.311b development. That memorandum, titled Radiation Review Under 38 C.F.R. § 3.311b, includes, in addition to the analysis concerning lung cancer outlined earlier, consideration of the relationship of colon cancer to the veteran's radiation exposure in service. Noting that the veteran received a probable radiation dose of 0.044 rem gamma in service at age 27 and citing CIRRPC Scientific Panel Report No. 6 (1988), the Acting Associate Deputy Chief Medical Director reported it is calculated that exposure to 28.3 rad or less at age 27 provides a 99 percent credibility that there is no reasonable possibility that it is as likely as not that the veteran's colon cancer was related to his exposure to ionizing radiation. He noted that the veteran's dose was much lower than the cited value and concluded it is highly unlikely that his colon cancer could be attributed to exposure to ionizing radiation in service. (Although not explicitly considered by the Acting Associate Deputy Chief Medical Director, the Board notes that the same conclusion follows with consideration of the worst case exposure of 0.63 rem. That is, 0.63 rem is also far lower than 28.3 rad, and with a 0.63 rem exposure there would also be no reasonable possibility that it is as likely as not that colon cancer was related to the veteran's exposure to ionizing radiation.) The July 1990 Advisory Opinion - Radiation Review Under 38 C.F.R. § 3.311b, from the VA Compensation and Pension Service Director was also added to the record. In addition to lung cancer, the Compensation and Pension Service Director considered colon cancer and stated that as a result of the medical opinion from the Acting Associate Deputy Chief Medical Director, and following review of the evidence in its entirety, it was his opinion that there is no reasonable possibility that the veteran's colon cancer was the result of his exposure to radiation in service. Upon review of the resumés of hospitalization and other reports from Arnot-Ogden Memorial Hospital added to the record subsequent to the October 1987 Board decision, the Board finds that all except the resumé of the veteran's January 1978 hospitalization are either duplicates of records or resumés previously of record or are cumulative of other such evidence previously of record in that they report histories or diagnoses based on history of surgery for either colon cancer or cancer of the rectum in January 1978. The resumé of the January 1978 hospitalization is new as it does not simply repeat histories but rather states that the veteran had a lesion of the rectum confirmed by sigmoidoscopy and that biopsy showed adenocarcinoma of the rectum. The resumé is relevant in that it summarizes the period of hospitalization to which later reports referred when reporting the history of colon cancer. It is not, however, supportive of the claim for service connection for colon cancer on a radiation basis as it tends to disprove rather than prove that the veteran had colon cancer and does not suggest that any cancer the veteran might have had was related to exposure to radiation in service. The July 1990 Radiation Review Under 38 C.F.R. § 3.311b from the VA Acting Associate Deputy Chief Medical Director and the Advisory Opinion from the VA Compensation and Pension Service Director dated later that month are clearly new and are relevant in that they address the relationship of colon cancer to the veteran's radiation exposure in service. However, they are against the claim of a causal relationship between the veteran's radiation exposure in service and colon cancer. The Board concludes that the 1978 hospital resumé and the VA radiation review opinions, though new, are not material to reopen the claim. This is so because though relevant, they are not probative of facts favorable to the appellant's claim and, far from raising a reasonable possibility, cannot raise any possibility of changing the outcome of the October 1987 Board decision. Evidence other than the reports from Arnot-Ogden Memorial Hospital and the VA radiation review opinions were received subsequent to the veteran's death. This evidence includes clinical records received from James Marshall, M.D., in January 1995 and dated from September to December 1988. These records show that in September 1988 Dr. Marshall noted that the pathology report concerning the parotid gland had shown a small cell carcinoma and this was confirmed by another physician who reviewed the slides later that month. In an October 1988 entry, Dr. Marshall stated that it would appear that the lesion in the parotid was metastatic from the lung and that the veteran also had metastasis in the liver, although he reportedly had also had colon cancer. In an entry later in October, Dr. Marshall noted that a liver biopsy was oat cell carcinoma. Other evidence includes a January 1995 letter from Dr. Canter in which he stated that he had treated the veteran for cancer of the rectum and in January 1978 performed an abdominal perineal resection. In addition, in a memorandum forwarded to the RO in July 1995, the Head of the Buffalo VA Cancer Center, who is a board certified medical oncologist, stated that she had reviewed the veteran's records. She stated that the veteran had a rectal carcinoma resected completely and successfully in 1978, and there was no evidence that this tumor recurred during his lifetime. She further stated that the veteran had one other malignancy, not 3 or 4 as had been claimed, and that this was diagnosed in 1988 when he was admitted to evaluate an enlarging mass on the left side of his face. She stated that this turned out to be a metastasis from a primary lung cancer. She said the lung tumor was a highly malignant small cell carcinoma which also involved the liver, multiple bones and adrenal glands and ultimately resulted in his death. As Dr. Marshall's clinical records, Dr. Canter's letter and the memorandum from the VA medical oncologist do nothing to support any of the appellant's accrued benefits claims, the Board need not address whether any of this evidence might be considered as being in the file at the date of the veteran's death as verifying or corroborating evidence in file at the date of death. See Hayes v. Brown, 4 Vet.App. 353, 358-61 (1993). ORDER Evidence of a well-grounded claim not having been presented, the claim for service connection for cancer of the adrenal glands for accrued benefits purposes is dismissed. Service connection for parotid gland cancer and liver cancer for accrued benefits purposes is denied. Service connection for lung cancer with metastases to multiple sites for accrued benefits purposes is denied. New and material evidence not having been presented, the claim for service connection for colon cancer due to radiation exposure for accrued benefits purposes is not reopened. SHANE A. DURKIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date (CONTINUED ON NEXT PAGE) which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -