Citation NR: 9701582 Decision Date: 01/17/97 Archive Date: 02/03/97 DOCKET NO. 90-26 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an effective date earlier than October 1, 1992, for service connection for the cause of the veteran’s death. 2. Entitlement to an effective date earlier than October 1, 1992, for service connection for adenoid cystic carcinoma due to exposure to ionizing radiation for the purpose of accrued benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran served on active duty from January 1955 to January 1958. This matter initially came before the Board of Veteran's Appeals (Board) on appeal from a January 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The case was last remanded by the Board in May 1995. Based on a VA Under Secretary for Benefits directive in April 1993, a rating action of that same month granted service connection for the cause of the veteran’s death, effective October 1, 1992. Although not specifically stated, that rating action also implicitly granted service connection for adenoid cystic carcinoma effective October 1, 1992, because service connection was not in effect for any disability prior to the veteran’s death and, after his death, it is the only disorder for which service connection has been granted and service connection has not been claimed for any other disability. Therefore, although the issues on appeal had previously been described as including entitlement to service connection for adenoid cystic carcinoma due to exposure to ionizing radiation for the purpose of accrued benefits, the issue before the Board is actually the effective date for service connection for that disability, for the purpose of accrued benefits, and the effective date for service connection for the cause of death. The issues on the title page have been changed to reflect this. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the effective date for service connection for the veteran’s fatal adenoid cystic carcinoma should be May 1988 when he first file a claim for service connection for that disorder because there is private medical evidence that inservice exposure to ionizing radiation caused his ultimately fatal adenoid cancer, which is a form of salivary gland cancer. It is also contended that service connection for the cause of the veteran’s death should be the date of his death. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's 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 preponderance of the evidence is against the claims for an effective date earlier than October 1, 1992, for service connection for adenoid cystic carcinoma due to exposure to ionizing radiation, for the purpose of accrued benefits, and for an effective date earlier than October 1, 1992, for service connection for the cause of the veteran’s death. FINDINGS OF FACT 1. The veteran served on active duty from January 1955 to January 1958. 2. The veteran’s service medical records are unavailable, having been destroy in a 1973 fire but he was exposed to inservice ionizing radiation during Operation REDWING in 1956. 3. The veteran first developed adenoid cystic carcinoma, a cancer of the salivary gland, in May 1984, approximately 27 years after inservice exposure to ionizing radiation in 1956. 3. The veteran died on January[redacted] 1990, of adenoid cystic carcinoma and at that time he was not service-connected for any disability and the only claim pending at his death was service connection for salivary gland cancer. 4. The veteran’s initial claim for service connection for adenoid cystic carcinoma was received on May 8, 1988. 5. It is not as likely as not, nor is there a reasonable probability, that the veteran’s inservice exposure to ionizing radiation caused his fatal adenoid cystic carcinoma. 6. A liberalizing law effective October 1, 1992, for the first time provided a lifetime presumption of service connection for veterans who participated in atmospheric nuclear testing and who suffered from adenoid cystic carcinoma at any time after exposure. 7. Adenoid cystic carcinoma is not factually shown to be due to the veteran’s inservice exposure to ionizing radiation. CONCLUSIONS OF LAW 1. An effective date for service connection for the cause of the veteran's death prior to October 1, 1992, is not warranted. 38 U.S.C.A. §§ 1112(c)(2)(N), 5110(g) (West 1991); 38 C.F.R. §§ 3.309(d), 3.311(b), 3.114 (1995). 2. An effective date for service connection for adenoid cystic carcinoma prior to October 1, 1992, for the purpose of accrued benefits, is not warranted. 38 U.S.C.A. §§ 1112(c)(2)(N), 5110(g), 5121(a) (West 1991); 38 C.F.R. §§ 3.309(d), 3.311(b), 3.114 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION Because there is medical evidence from Dr. Cantrell and Dr. Baker indicating that inservice exposure to ionizing radiation may have caused adenoid cystic carcinoma, the veteran's claims are plausible and thus "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), which mandates a duty to assist the veteran in developing all pertinent evidence. This case was remanded by the Board in January 1991, October 1991, November 1992, and May 1995 for procedural and evidentiary development, to include development in accordance with 38 C.F.R. § 3.311 (1995). No additional evidentiary development has been requested and the evidentiary record is now sufficient both in scope and in depth for a fair, impartial, and fully informed appellate decision. In appellant’s substantive appeal, VA Form 1-9, of May 1990 she indicated, in response to whether she desired a hearing, “[Y]es, if prolonged - No, at present.” In light of the passage of time she was contacted by letter in December 1996 as to whether she now desired a hearing. That letter was returned and was signed by the appellant on December 7, 1999, and reflects that she did not desire a hearing. Background The veteran’s service medical records are unavailable, having been destroyed in a fire in 1973 and a search of records of the Office of the Surgeon General has been negative. Private clinical records do not antedate 1982 and those in 1982 and 1983 are negative for cancer or adenopathy. Specifically, in December 1982 and June 1983 examinations of the veteran’s neck were negative for adenopathy. The private clinical records do no document the existence of cancer of his palate, diagnosed as adenoid cystic carcinoma, prior to 1984. The veteran’s initial claim for service connection for adenoid cystic carcinoma based on exposure to ionizing radiation was received in May 1988. A dose assessment from the Defense Nuclear Agency (DNA) was obtained in March 1989 and documents the veteran’s participation in Operation REDWING in 1956. (Generally see 38 C.F.R. § 3.309(3)(v)(M) the operational period thereof). His recorded exposure from April through October 1956 was 4.345 rem, with a probable dose exposure of 0.439 rem gamma from October through December 1956 with a “most probable total REDWING dose [of] 4.784 rem gamma” (the sum of the two). Dr. Cantrell reported in June 1988 that the veteran had had adenoid cystic carcinoma of his hard palate since May 1984, for which he had had chemotherapy, radiation therapy, and multiple surgical procedures and that adenoid cystic carcinoma was a cancer of the salivary gland. There was a “statistically significant increase in salivary gland cancers” in those who had survived the atomic blasts at Hiroshima and Nagasaki. Further, his “tumor may well be service connected, i.e. related to his exposure to radiation therapy [sic] in these officially sanctioned and government sponsored tests in the fifties.” An opinion from an Associate Deputy Chief Medical Director was obtained in December 1989 pursuant to radiation review under 38 C.F.R. § 3.311b (now 38 C.F.R. § 3.311). After review of the claim file it was reported that the veteran had developed “[a]denoid [c]ystic [c]arcinoma of the hard palate 34 years after his exposure.” It was reported that “[s]alivary gland cancer is reported to be more often attributable to exposure to ionizing radiation during childhood than during adult years” but that “[t]here is also evidence that the risk of salivary gland cancer increases with the dose of ionizing radiation” but that the “doses associated with salivary gland cancer have generally been reported as above 100 rad.” Thus, “[t]he veteran’s dose was much lower than the cited value and it is highly unlikely that his disease can be attributed to exposure to ionizing radiation in service.” Based on a December 1989 VA Under Secretary for Benefits directive stating that based on the above medical opinion there was “no reasonable possibility” that the veteran’s cancer was from inservice ionizing radiation exposure, service connection for adenoid cystic carcinoma of the hard palate was denied by rating decision in January 1990. That rating decision noted that adenoid cystic carcinoma of the veteran’s hard palate was first diagnosed in May 1984 and is a part of the salivary gland. The veteran’s death certificate reveals that he died on January[redacted] 1990, of systemic multiple organ failure due to cardiopulmonary failure as a result of adenoid cystic carcinoma. At the time of his death service connection was not in effect for any disability and the only claim pending at his death was for service connection for salivary gland cancer. In February 1990 Dr. Cantrell reported that the veteran’s death due to adenoid cystic carcinoma “resulted from exposure to atomic irradiation during the atomic and hydrogen bomb testing in 1956.” It was reported that medical literature supported the conclusion that “in those exposed to 300 or more rads of irradiation, the relative risk for contracting a malignant salivary gland tumor (adenoid cystic carcinoma) was 21.8 times as great as for those who were [not] exposed.” Dr. Baker reported in May 1990 that the time interval between inservice radiation exposure in 1956 and development of salivary gland cancer in May 1984, of approximately 25 years [actually closer to 27 years], was consistent with the observed time interval between X-ray exposure and clinical expression of such a cancer. In summary, absent other known risk factors, the veteran’s exposure to 4.345 rems could have increased his risk of salivary gland cancer by 9.4 percent above the expected incidence in the general population, but given the small gamma ray dose and the uncertainties in the models available for risk estimates, the significance of the 9.4 percent excess risk “may be difficult to interpret.” An April 1993 VA Under Secretary for Benefits directive instructed the RO to grant service connection for adenoid cystic carcinoma, a salivary gland cancer, based on Public law 102-578, which became effective October 1, 1992, and which amended 38 U.S.C.A. § 1112(c) to eliminate the requirement that the listed diseases therein (and under 38 C.F.R. § 3.309(d)(2)) become manifest to a degree of 10 percent or more within the latency or presumptive period. In September 1993 the DNA reported that a reevaluation of the veteran’s dose assessment indicated that the reconstructed dose from April through October 1956 was 3.087 (whereas the sum of the film badge readings was 4.345 rem) and that the calculated dose of exposure from October through December 1956 was 0.233 rem (and not the 0.439 reported in March 1989) (for a total of 3.320 rem). Pursuant to the Board’s November 1992 remand, in September 1993 the VA Under Secretary for Benefits referred the case to the VA Under Secretary of Health. In February 1994 an Assistant VA Chief Medical Director reported that a 9.4 percent increased incidence of carcinoma, as reported in May 990 by Dr. Baker, was “inadequate to establish a causal relationship between his [inservice radiation] exposure and the [fatal salivary gland] tumor.” In June 1994 the same Assistant VA Chief Medical Director reported that the 9.4 percent increased risk factor cited by Dr. Baker was “equivalent to approximately a 1/11 probability that a salivary gland cancer in such a radiation-exposed individual is due to the radiation and a 10/11 probability that the cancer is due to background factors. Since 1/11 is much smaller than 10/11, it does not appear ‘at least as likely as not’ that radiation exposure caused the salivary gland cancer.” Thereafter, a July 1994 directive from the VA Under Secretary for Benefits noted that Dependency and Indemnity Compensation (DIC) benefits based on the veteran’s death, which was found to be service-connected under 38 C.F.R. § 3.309(d) [and 38 U.S.C.A. § 1112(c)(2)], had been granted but that after review “there is no reasonable possibility” that adenoid cystic carcinoma was the result of radiation exposure and, therefore, an earlier effective date of entitlement under 38 C.F.R. § 3.311 (setting forth a separate regulatory scheme governing radiation claims) was not warranted. Based on the foregoing, a rating decision of December 1994 denied an effective date earlier than October 1, 1992, for service connection for the cause of the veteran’s death and denied “service connection for adenoid cystic carcinoma due to exposure to ionizing radiation for the purpose of accrued benefits.” (In actuality service connection for adenoid cystic carcinoma had, of course, already been granted, but the denial of accrued benefits was based on an implicit denial of an earlier effective date for service connection for adenoid cystic carcinoma.) Following remand of the case by the Board in May 1995, the same Assistant VA Chief Medical Director reported in March 1996 that based on an upper bound of 6.3 rem as the maximum possible radiation exposure dose and while the salivary gland appeared to have a relatively high susceptibility to radiation carcinogenesis “there is a slightly more than about 20 % probability that salivary gland cancer developing in a male exposed to 10 rads at age 10 can be attributed to radiation exposure and exposure in childhood may result in a higher risk than in adults ... since the veteran was exposed to a lower dose at an older age, we would expect the estimated probability of causation to be lower.” “Using the increased risk for salivary cancer estimated by Dr. Donald Baker in his letter [] and inflating for a higher estimated dose would yield an estimated increased risk of about 14 %.” “In light of the above, in our opinion it is unlikely that the veteran’s salivary gland cancer can be attributed to exposure to ionizing radiation in service.” Later in March 1996, a directive from the VA Under Secretary for Benefits found, based on the March 1996 medical opinion, that “there is no reasonable possibility that the veteran’s cancer was the result of such [radiation] exposure.” Law and Regulations Death benefits may be paid to the surviving spouse of a veteran who died from a service-connected disability. Such death will be considered service-connected where a service- connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability is the principal cause of death when that disability, singly or jointly with some other condition was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be a contributory cause of death, the disability must have contributed substantially or materially to death, combined to cause death or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). YT v Brown, 9 Vet.App. 195, 200 (1996). 38 U.S.C.A. § 5121(a) (West 1991) provides for the payment of accrued benefits if the veteran was "entitled at death" under "existing ratings or decisions" or there existed "evidence in the file at date of death regarding monetary benefits due and unpaid." Service Connection Service connection is to be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Where, as here, the veteran had ninety (90) days or more of war or peacetime service after December 31, 1946, and cancer manifests to a compensable degree within a year after service, it is rebuttably presumed to be of service origin, absent affirmative evidence to the contrary, even if there is no evidence thereof during service. 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1995). Radiation Pursuant to the 1984 Veterans Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, the VA enacted Regulation 38 C.F.R. § 3.311b setting up a standard for review of claims based on radiation exposure and providing that if a veteran was exposed to ionizing radiation due to atmospheric nuclear testing, and developed a radiogenic disease which manifested within the specified time period, the case would be referred to the VA Under Secretary for Benefits (formerly the VA Chief Benefits Director) for review. Effective May 1, 1988, Public Law 100-321, the Radiation- Exposed Veterans Compensation Act of 1988, amended former 38 U.S.C.A. § 312 (now 38 U.S.C.A. § 1112(c) (West 1991)) and elevated the regulatory criteria now found at 38 C.F.R. § 3.309(d) (1995) to a legal statutory presumption of service connection. Thereafter, Public Law 102-578, the Veterans Radiation Exposure Amendments of 1992, became effective October 1, 1992, and removed the presumptive period of 40 years and added cancer of the salivary gland to the list of presumptive radiation diseases. 38 U.S.C.A. § 1112(c)(2)(N). The amendment thus provided a lifetime presumption of service connection for any disease listed at 38 U.S.C.A. § 1112(c)(2) and 38 C.F.R. § 3.309(d)(2), including salivary gland cancer, which manifested to any degree at any time after inservice exposure to ionizing radiation. Section 2(b) of Public Law 102-576 provided that the amendments made “shall take effect on October 1, 1992.” Analysis In sum, for the reasons and bases that follow, service connection for the cause of the veteran’s death from adenoid cystic carcinoma, granted on the basis of the statutory presumption, can not be made effective prior to October 1, 1992. Similarly, the effective date for any implicit grant of service connection for adenoid cystic carcinoma, for the purpose of accrued benefits, granted on the basis of the statutory presumption can not be made effective prior to October 1, 1992. Thus, because the veteran died on January [redacted] 1990, almost two years prior to the effective date of the liberalizing statutory amendment, he was not in his lifetime entitled to service connected disability compensation for adenoid cystic carcinoma on the basis of the statutory grant of service connection. Because service connection was not in effect for any disability at the veteran’s death and because it is neither shown nor contended that his death was from anything other than the subsequently service-connected salivary gland cancer, to be entitled to an earlier effective date for service connection for the cause of the veteran’s death it must be shown that an effective date is warranted for service connection for salivary gland cancer as of the date that the veteran filed his initial claim for service connection on May 8, 1988, either under the regulatory scheme set forth in 38 C.F.R. § 3.311 or under the general principles of service connection. The holding of the Untied States Court of Veterans Appeals (Court) in Ramey v. Brown, 9 Vet.App. 40, 44-46 (1996) mandates a three-fold analysis in this case. In Ramey the Court held that service connection for cancer or for death caused by cancer which is claimed to be attributable to radiation exposure during service can be accomplished in three ways. First, a cancer will be presumptively service connected under 38 U.S.C. § 1112(c) if it is one of the diseases listed therein (as salivary gland cancer became listed as of October 1, 1992). Second, 38 C.F.R. § 3.311(b) provides a list of “radiogenic diseases” which will be service connected provided that certain conditions specified in that regulation scheme are met. Third, direct service connection can be established by showing that the disease was incurred during or aggravated by service or under the general provisions for service connection for certain chronic diseases. Statute The grant of service connection for the cause of the veteran's death due to adenoid cystic carcinoma, a form of salivary gland cancer from radiation exposure was based on Public Law 102-578, which became effective October 1, 1992. Because Public Law 102-578 was a liberalizing law, the effective date for service connection for the cause of the veteran’s death and the effective date for service connection for the cause of the veteran’s death, as well as any underlying grant of service connection for adenoid cystic cancer, for the purpose of accrued benefits, may not, on the basis of statutory presumptive service connection, be granted earlier than the effective date of the liberalizing law. 38 U.S.C.A. § 5110(g) (West 1991) and 38 C.F.R. § 3.114 (1995). Thus, an earlier effective date may be assigned only under the second or third analytical approaches under Ramey. Regulation It must next be determined whether an earlier effective date may be granted under the second analytical step in Ramey, i.e., the regulatory scheme for evaluating claims based on inservice exposure to ionizing radiation under 38 C.F.R. § 3.311. The Court of Appeals for the Federal Circuit rendered a decision in Combee v. Brown, 34 F.3d 1039, 1043 (Fed.Cir. 1994) which contains language that could suggest that 38 C.F.R. § 3.311(b) creates a presumption of service connection for radiogenic diseases. However, the Court held in Ramey that despite such language of the Federal Circuit’s decision in Combee, 38 C.F.R. § 3.311 did not provide presumptive service connection for radiogenic diseases but only outlined a procedure for adjudicating a claims for service connection for such a disease. Under 38 C.F.R. § 3.311(a)(1) where, as here, a radiogenic disease listed is in 38 C.F.R. § 3.311(b)(2) manifests after service a dose assessment will be made pursuant to 38 C.F.R. § 3.311(a)(2). Salivary gland cancer is considered a “radiogenic disease” under 38 C.F.R. § 3.311(b)(2)(xiv). Dose assessments have been obtained in this case. Under 38 C.F.R. § 3.311(b)(1)(iii) “it shall not be determined that a [listed radiogenic] disease has resulted from exposure to ionizing radiation” if the disease did not manifest within the “period specified in paragraph (b)(5).” Under 38 C.F.R. § 3.311(b)(5) (iv) salivary gland cancer “must become manifest within 5 years or more after exposure.” Thus, since salivary gland cancer did not in this case manifest within 5 years of the veteran’s last exposure, which was in 1956, service connection for salivary gland cancer under the regulatory scheme contained in 38 C.F.R. § 3.311 may not be granted. In any event, 38 C.F.R. § 3.311(b)(1)(iii) states that a claim for service connection for a radiogenic disease will be referred to the VA Under Secretary for Benefits when a listed radiogenic disease manifests within the specified time frame. Although in this case salivary gland cancer did not manifest within the requisite time frame of 5 years; nonetheless, the case was referred to the VA Under Secretary for Benefits pursuant to 38 C.F.R. § 3.311(c) and advisory medical opinions were obtained pursuant to 38 C.F.R. § 3.311(c)(1). Under 38 C.F.R. § 3.311(c)(1)(i) and (ii) the standards for review by the VA Under Secretary for Benefits are whether “it is at least as likely as not” or whether “there is no reasonable possibility” that the disease resulted from inservice radiation exposure. A close reading of the regulation reveals that these standards are alternate standards. The VA advisory medical opinions indicated in December 1989 that it was “highly unlikely,” in June 1994 that it “does not appear ‘at least as likely as not’,” and in March 1989 that it was “unlikely” that inservice exposure to ionizing radiation caused the veteran’s fatal salivary gland cancer. On the other hand, the December 1989, July 1994, and March 1996 conclusions of the VA Under Secretary for Benefits were that there was “no reasonable possibility” that inservice exposure to ionizing radiation caused the veteran’s fatal salivary gland cancer. In other words, the VA medical advisory opinions addressed the ‘likelihood’ (38 C.F.R. § 3.311(c)(1)(i)) and the VA Under Secretary for Benefits addressed a ‘reasonable possibility’ (38 C.F.R. § 3.311(c)(1)(ii)) of a pertinent relationship. However, there is no prejudice to the appellant in these different usages. This is because the standard of ‘at least as likely as not’ more closely approaches the equipoise or approximate balance of the evidence standard contained in 38 U.S.C.A. § 5107(b) (West 1991) (see Gilbert v. Derwinski, 1 Vet.App. 49, 54 (1990)) and the ‘no reasonable possibility’ standard is a lower standard which does not require an approximate balance of the evidence. Here, the Under Secretary for Benefits used the lower, and not the higher, standard. It must be noted here that the VA advisory medical opinions and the statements of the VA Under Secretary for Benefits considered the entire evidentiary record, including the medical opinions of Drs. Cantrell and Baker. Indeed, these private medical opinions were specifically addressed. After compliance with the regulatory scheme contained in 38 C.F.R. § 3.311, the VA Under Secretary for Benefits, and the RO properly determined that service connection was not warranted for salivary gland cancer under that regulatory scheme. Accordingly, an earlier effective date for service connection for the veteran’s fatal salivary gland cancer for the purpose of accrued benefits, as well as for service connection for the cause of the veteran’ s death, under the regulatory scheme in 38 C.F.R. §3.311 is not warranted. General Principles of Service Connection It is undisputed that salivary gland cancer first manifested several decades after service. Since it is neither shown nor contended that the disease manifested within one year of service, service connection is not warranted under the general provisions for chronic diseases contained in 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 1991) and 38 C.F.R. §§ 3.307, 3.309 (1995). It is the judgment of the Board that the VA advisory medical opinions, which determined that it was not at least as likely as not that there was a causal relationship between inservice exposure to ionizing radiation and the development of salivary gland cancer, outweigh the opinions of Drs. Cantrell and Baker. In this regard, the opinions of Dr. Cantrell in June 1988 and February 1990 used information relative to survivors of atomic blasts at Hiroshima and Nagasaki who were more likely to be exposed to much greater levels of radiation exposure. The opinion of Dr. Baker was based on information pertaining to children, not adults, exposed to radiation from X-ray therapy. Moreover, Dr. Baker even stated that in the veteran’s case there was no more than a 9.4 percent higher incidence of salivary gland cancer and, more importantly, that the significance this level of increased risk “may be difficult to interpret.” Consequently, even Dr. Baker’s statement is at best equivocal and even when considered with the statements of Dr. Cantrell, does not outweigh the negative VA advisory medical opinions. Accordingly, service connection under the general principles of service connection is not warranted for salivary gland cancer and, thus, an earlier effective date for service connection for the veteran’s fatal salivary gland cancer for the purpose of accrued benefits, as well as for service connection for the cause of the veteran’ s death, is not warranted. The Board must resolve reasonable doubt in favor of an appellant and it exists when evidence is in equipoise or approximate balance. If so, or if the preponderance of the evidence is favorable, allowance is mandatory but if preponderance of the evidence is unfavorable, denial is in order. A reasonable doubt is one within the range of probability and not pure speculation or remote possibility. It is not a means of reconciling conflicting or contradictory evidence but a mere suspicion or doubt as to truth of statements, as distinguished from impeachment or contradiction by evidence or known facts may not be a basis for not applying reasonable doubt if the entire evidence otherwise warrants it. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49, 54 (1990). For the aforestated reasons and bases, it is the judgment of the Board that the preponderance of the evidence is against the appellant’s claims and, therefore, there is no doubt to be resolved. ORDER The claims for an effective date earlier than October 1, 1992, for service connection for adenoid cystic carcinoma due to exposure to ionizing radiation for the purpose of accrued benefits and for an effective date earlier than October 1, 1992, for service connection for the cause of the veteran’s death are denied. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 & Supp. 1996), 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, 102 Stat. 4105, 4122 (1988). The date 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 -