Citation Nr: 0005777 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 94-15 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to accrued disability compensation payable to the veteran prior to his death, based on claimed entitlement to service connection for lung cancer. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The veteran served on active duty from January 1945 to November 1946. The veteran died in January 1992. The appellant is his widow. This appeal comes before the Board of Veterans' Appeals (Board) from a January 1993 rating decision of the Houston, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied entitlement to service connection for the cause of the veteran's death, and denied entitlement to accrued disability compensation payable to the veteran prior to his death based on claimed entitlement to service connection for lung cancer. The appellant has since relocated, and her case is now being handled through the Nashville, Tennessee, RO. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran served in Japan in 1946, but did not serve in or near Hiroshima or Nagasaki. 3. It is not reasonably shown that the veteran was exposed to ionizing radiation during service. 4. The veteran was diagnosed with lung cancer in 1986. 5. The veteran died in 1992, with an immediate cause of death of cerebral vascular attack, and an underlying cause of death of lung cancer. 6. The veteran did not submit, nor has the appellant submitted, competent medical evidence of a connection between the veteran's lung cancer and any condition or event during the veteran's service. CONCLUSIONS OF LAW 1. The veteran's death from cerebral vascular attack and lung cancer is not shown to have been caused by claimed exposure of the veteran to radiation during service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312 (1999). 2. The veteran's lung cancer was not incurred in or aggravated by service, nor as a result of claimed exposure of the veteran to radiation during service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (1999). 3. No accrued disability compensation is payable to the appellant based on the veteran's claim for service connection for lung cancer. 38 U.S.C.A. § 5121(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.1000(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant asserts that the veteran died from lung cancer, and that his lung cancer was caused by radiation exposure during his service in Japan at the end of World War II. The appellant is seeking dependency and indemnity compensation (DIC). She is also seeking accrued benefits to which she contends the veteran was entitled at the time of his death, based on the veteran's pending claim for service connection for lung cancer. In his claim, the veteran contended that his lung cancer was caused by radiation exposure during his service in Japan. The RO did not issue a decision on the veteran's claim for service connection for lung cancer prior to the veteran's death. A person who submits a claim for veteran's benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has defined a well grounded claim as a plausible claim; one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). When a veteran has presented a well grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), VA has a duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). In determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1998). To establish service connection for the cause of a veteran's death, evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service- connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but, rather, there must have been a causal connection. 38 C.F.R. § 3.312 (1998). With regard to accrued disability compensation, a deceased veteran's surviving spouse may be entitled to accrued benefits to which the veteran was entitled at death under existing ratings or decisions, or based on evidence in the file at the date of death. The eligible survivor is entitled to benefits that are due and unpaid for a period not to exceed two years prior to the veteran's death. 38 U.S.C.A. § 5121(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.1000(a) (1999). Medical records indicate that physicians found in 1986 that the veteran had lung cancer. After the veteran died in January 1992, the certificate of death listed the immediate cause of his death as cerebral vascular attack with left hemiplegia, and the underlying cause of his death as advanced glandula carcinoma of the lungs. The veteran contended during his lifetime, and the appellant now contends, that the veteran's lung cancer was caused by radiation exposure during service. Thus, the appellant's two claims each depend on a decision as to whether the veteran's lung cancer was service connected. In Ramey v. Brown, 9 Vet. App. 40, 44 (1996), the Court noted 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 different ways. First, there are 15 types of cancer that may be presumed to be service connected for a radiation-exposed veteran, if the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) are met. Second, 38 C.F.R. § 3.311(b) provides a list of "radiogenic diseases" that will be service connected if the provisions of that regulation are met. Third, direct service connection can be established, by showing that the cancer was incurred during service or aggravated by service. The Court noted that showing direct service connection would include "the difficult burden of tracing causation to a condition or event during service." Ramey, at 44, citing Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The appellant asserts that the veteran served with the American occupation forces in Hiroshima and Nagasaki at the end of World War II. Medical records reflect that the veteran had lung cancer, which is a "radiogenic disease" under 38 C.F.R. § 3.311, and that the veteran's lung cancer was first diagnosed and treated more than five years after his service in Japan. Presuming all supporting evidence to be true, as required by King, supra, the Board finds that, under at least one theory, the veteran's claim, pending at death, for service connection for lung cancer was a well grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). By extension, the appellant's claims for service connection for the cause of the veteran's death, and for accrued benefits, are well grounded claims. The Board is satisfied that the facts relevant to the appellant's claims have been properly developed, and that VA has satisfied its statutory obligation to assist the appellant in the development of her claims. With regard to the first way to establish service connection for cancer due to radiation, the type of cancer the veteran had, lung cancer, is not one of the 15 types of cancer listed as being presumed to be service-connected in a radiation- exposed veteran. 38 U.S.C.A. § 1112(c) (West 1991 & Supp. 1999); 38 C.F.R. § 3.309(d) (1999). With regard to the second way to establish service connection for cancer due to radiation, lung cancer is included in the list, at 38 C.F.R. § 3.311(b)(2) (1999), of radiogenic diseases, that is, diseases that may be induced by ionizing radiation. A claim for service connection for disease claimed as resulting from radiation exposure will be referred to the VA Under Secretary for Benefits for further consideration, if the following three determinations are made: 1) The veteran was exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed; 2) The veteran subsequently developed a radiogenic disease; and 3) Such disease first became manifest within the period specified in 38 C.F.R. § 3.311(b)(5). If any of the foregoing three requirements has not been met, it shall not be determined that a disease has resulted from exposure to ionizing radiation under such circumstances. 38 C.F.R. § 3.311(b) (1999). In a May 1991 claim, the veteran contended that his lung cancer was due to radiation exposure from being stationed in Japan from 1944 to 1946. In March 1992, the appellant wrote that she believed that the veteran had been stationed with the Hiroshima and Nagasaki occupation forces during his service in Japan. In July 1993, the appellant wrote that the veteran had told her that he was stationed with the occupation forces in Hiroshima and Nagasaki. 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 38 C.F.R. § 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. 38 C.F.R. § 3.311(a) (1999). When radiation dose data is requested in a claim based on participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946, the dose data will be requested from the Department of Defense. 38 C.F.R. § 3.311(a)(2)(ii) (1999). In 1992, the RO requested and received information from the Department of Defense, Defense Nuclear Agency, regarding the veteran's service in Japan and his location in relation to areas subject to risk of exposure to radiation. In 1996, the Board remanded the case for additional development. The RO obtained additional information from the Department of Defense, Defense Special Weapons Agency. VA regulations define the term "occupation of Hiroshima or Nagasaki, Japan, by United States forces" as official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki. 38 C.F.R. § 3.309(d)(3)(vi) (1999). Former prisoners of war are considered to have been exposed to radiation if they were interned within 75 miles of the city limits of Hiroshima or within 150 miles of the city limits of Nagasaki. 38 C.F.R. § 3.309(d)(3)(vii) (1999). The veteran's service records indicate that he served from January 1945 to November 1946. A separation qualification record from the veteran's service indicated that the veteran was assigned to the Army's 11th Airborne Division, located in Sendai, Japan. The record indicated that the veteran worked in and supervised the division's shoe repair shop. In December 1992, the Defense Nuclear Agency (DNA) reported that morning reports for the veteran's unit indicated that on April 30, 1946, the veteran joined the 408th Airborne Quartermaster Company, of the 11th Airborne Division, at Sendai, Honshu, Japan, approximately 575 miles from Hiroshima and 725 miles from Nagasaki. Morning reports indicated that the veteran was still serving in Sendai as of July 31, 1946. The veteran was transferred to Sendai from the 5th Replacement Depot at Manila, Philippine Islands, over 1500 miles from the main Japanese islands. The DNA correspondent wrote that Army records showed that the veteran served in Japan, but not with the American occupation forces at either Hiroshima or Nagasaki. The correspondent reported that, at the distances of Sendai from Hiroshima and Nagasaki, there was no risk of exposure to radiation from the strategic atomic bombing of either Hiroshima or Nagasaki. In April 1993, the appellant wrote that the veteran had served in Japan longer than the three month period addressed in the letter from the DNA. The Defense Special Weapons Agency (DSWA) responded in December 1996 to further VA inquiries regarding the veteran's history. The DSWA correspondent reported that Army records indicated that the veteran departed the continental United States on October 2, 1945, and arrived at Manila, Philippine Islands, on October 25, 1945. The veteran remained in the Philippines until he arrived at Sendai, Honshu, Japan, on April 20, 1946. He served in Sendai until October 6, 1946, when he was moved to Tokyo, approximately 550 miles from Nagasaki and 400 miles from Hiroshima. He returned to the continental United States on October 22, 1946. The DSWA correspondent reported that Army records indicated that the veteran served in Japan hundreds of miles from Hiroshima or Nagasaki. The DSWA correspondent added that a scientific radiation dose reconstruction prepared by DNA had determined that even those persons who had served in the American occupation of Hiroshima or Nagasaki had been exposed to a maximum radiation dose of less than one rem. The appellant reports that the veteran told her that he served in the occupation forces in Hiroshima and Nagasaki. Department of Defense agencies reviewed the military records of the veteran and the units in which he served, and concluded that the veteran served in Japan, but hundreds of miles away from Hiroshima and Nagasaki. The Board finds that the documentary evidence reviewed by the Department of Defense carries greater evidentiary weight than the appellant's fairly general statement of what the veteran told her. Therefore, the Board concludes that the preponderance of the evidence indicates that the veteran did not participate in the American occupation of Hiroshima or Nagasaki, and that the veteran was not exposed to ionizing radiation as a result of his duties in Japan or elsewhere. In the absence of a determination that the veteran was exposed to ionizing radiation, the veteran's pending claim for service connection for lung cancer based on radiation exposure did not meet the requirements for service connection under 38 C.F.R. § 3.311. With regard to the third way to establish service connection for cancer due to radiation, direct service connection requires evidence that the cancer was incurred in or aggravated by service. In Caluza v. Brown, 7 Vet. App. 498 (1995), the Court set out three requirements that must be met in order for a claim of service connection to be considered well grounded. First, there must be competent evidence of a current disability (a medical diagnosis). Second, there must be competent evidence of incurrence or aggravation of a disease or injury in service (lay or medical evidence). Third, there must be competent evidence of a nexus between the injury or disease in service and the current disability (medical evidence). The third requirement can be satisfied by a statutory presumption that certain diseases that manifest within certain prescribed periods are related to service. Caluza, at 506. The Court has ruled that, for a claim for service connection for the cause of a veteran's death to be well grounded, the same three requirements apply. Ramey v. Brown, 9 Vet. App. 40 (1996). In cause of death cases, the first requirement, evidence of a current disability, will always have been met (the current disability being the condition that caused the veteran to die), but the last two requirements must be supported by evidence of record. Ramey at 46. In this case, the certificate of death indicates that lung cancer was an underlying cause of the veteran's death. The veteran's service medical records are silent for any complaint or finding of lung cancer. The claims file does not contain any medical evidence or opinion that it is plausible or possible that the veteran's lung cancer was linked to any condition or event during his service. The veteran contended that his lung cancer was due to exposure to radiation during his service in Japan; but the statements of lay persons are not competent evidence of medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board concludes, therefore, that the preponderance of the evidence is against direct service connection of the veteran's lung cancer. In summary, under each of the three theories addressed above, the preponderance of the evidence is against a finding that the veteran's lung cancer was caused by exposure to radiation during service. The appellant has neither contended nor submitted competent evidence to show that the veteran's direct cause of death, cerebral vascular attack, was linked to his service. As entitlement to service connection for the veteran's lung cancer is not shown, the Board finds that the preponderance of the evidence is against the appellants claims for service connection for the cause of the veteran's death, and for accrued benefits based on the veteran's pending claim for service connection for lung cancer. Accordingly, both of the appellant's claims are denied. ORDER Entitlement to service connection for the cause of the veteran's death is denied. Entitlement to accrued disability compensation payable to the veteran prior to his death, based on claimed entitlement to service connection for lung cancer, is denied JEFF MARTIN Member, Board of Veterans' Appeals