BVA9501796 DOCKET NO. 93-04 043 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Montana Veterans Affairs Division WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 1991 rating decision of the Department of Veterans Affairs Regional Office in Fort Harrison, Montana (RO) which denied the benefit sought on appeal. The appellant appealed that decision to the BVA, and the case was received at the Board in February 1993. The veteran had active service from February 1954 to October 1957, and from July 1958 to September 1978, and he died in January 1991. Among the appellant's contentions is the contention that the veteran's pancreatic cancer was due to exposure to Agent Orange. A December 1992 rating decision indicates that service connection for the cause of the veteran's death as secondary to exposure to Agent Orange was being deferred. This matter has not been adjudicated by the RO it is not currently before the Board. Consequently, no further reference will be made in this decision to exposure to Agent Orange. CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that the RO was incorrect in not granting the benefit sought on appeal. The appellant maintains, in substance, that the veteran's pancreatic cancer was due to radiation and/or toxic chemicals he was exposed to while on active duty. It is asserted that the veteran was exposed to RF radiation and carbon tetrachloride for many years in connection with his work as an avionics technician during service. A favorable determination has been requested, but it has been suggested that further development of this case is necessary in the form of obtaining additional service records and an opinion from the Armed Forces Institute of Pathology (AFIP). DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed all of the evidence of record. Based on a review of the evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not submitted evidence of a well-grounded claim to establish entitlement to service connection for the cause of the veteran's death. FINDINGS OF FACT 1. The veteran's death certificate shows he died in January 1991 of pancreatic carcinoma. 2. During the veteran's lifetime, service connection had been established for hypertension, hemorrhoids, hiatal hernia and fractures of left ribs III, IV, and V, all evaluated as noncompensably disabling. 3. Pancreatic cancer was not manifested during service or within one year of the veteran's separation from service. 4. Pancreatic cancer is not shown to be causally or etiologically related to the veteran's reported exposure to either RF radiation or carbon tetrachloride. 5. The veteran's death is not shown to have been caused, hastened or substantially or materially contributed to by a disability of service origin. CONCLUSION OF LAW The appellant has not submitted a well-grounded claim to establish entitlement to service connection for the cause of the veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The preliminary question to be answered in this case is whether the appellant has presented a well-grounded claim. In this regard, the appellant 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); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If the appellant has not presented a well-grounded claim her appeal must fail and be dismissed. See Boeck v. Brown, 6 Vet.App. 14, 17 (1993); Grivois v. Brown, 6 Vet.App. 136, 140 (1994). The Board finds and concludes that the appellant's claim is not well grounded. Accordingly, since the Board does not have jurisdiction of the question over whether or not the benefit sought on appeal is warranted, the appellant's claim is dismissed. 38 U.S.C.A. § 7105(d)(5) (West 1991). The evidence for consideration shows that the veteran died in January 1991 of pancreatic cancer which had apparently been diagnosed several months prior to his death. The veteran's service medical records do not contain evidence that pancreatic cancer was manifested during service, or within the one-year presumptive period following the veteran's separation from service, nor is it contended that the veteran's cancer was manifested in either time frame. It is also not contended that the veteran's pancreatic cancer was in any way related to the veteran's service-connected hypertension, hemorrhoids, hiatal hernia or multiple left rib fractures. Rather, it is contended the veteran's pancreatic cancer was due to RF radiation and/or toxic chemicals he was exposed to while on active duty, specifically, carbon tetrachloride. However, the pathology or etiology of the veteran's pancreatic cancer is a medical question which requires a medical opinion, and no medical evidence has been submitted which offers an opinion that the veteran's pancreatic cancer was due to either radiation or chemical exposure. In fact, in an October 1992 statement from Anne M. Williams, M.D., it was indicated that: "The cause or causes of pancreatic cancer, as you know, are completely unknown. No single agent or chemical has ever been associated with development of carcinoma of the pancreas." Although Dr. Williams speculated that there was a possibility that chemical exposure may have "contributed in some way to the development of the carcinoma" based on the effect chemicals have been shown to have on other various organs of the body, given the statement that the cause of pancreatic cancer is completely unknown, this statement does not aid the appellant in establishing her claim because it amounts to no more than speculation. Also, while Dr. Williams indicated that the pancreatic tumor had been present for "a number of years prior to his diagnosis," the Board does not construe the phrase "a number of years" as referring back to 1978 when the veteran was separated from service, well over a decade prior to the diagnosis of carcinoma of the pancreas, or the year immediately following the veteran's separation from service. Consequently, the Board concludes that the appellant has not submitted evidence of a well-grounded claim to establish entitlement to service connection for the cause of the veteran's death. As for the need for further development suggested by the appellant's representative at the appellant's personal hearing, the RO did request service records pertaining to the veteran's exposure to occupational radiation, and a response was received in October 1991 which indicated that there were no radiation exposure records of any kind found in the veteran's service records. The representative and the hearing officer discussed whether the records maintained by the service would document exposure to RF radiation, as opposed to ionizing radiation, but in the absence of records which would document exposure to radiation, it does not appear that there are any other pertinent service records available. Also, with respect to obtaining an opinion from the AFIP, given the statement submitted by the private physician and the lack of documentation to exposure to radiation or toxic chemicals, such an opinion is unnecessary, particularly in view of the absence of evidence submitted by the appellant which demonstrates a well-grounded claim. ORDER A well-grounded claim not having been submitted to establish entitlement to service connection for the cause of the veteran's death, the benefit sought on appeal is dismissed. CHARLES E. HOGEBOOM 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 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.