Citation Nr: 0005125 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 97-20 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for the cause of the veteran's death as secondary to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD J. M. Ivey, Associate Counsel INTRODUCTION The veteran served on active duty from June 1953 to June 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDINGS OF FACT 1. The veteran died in January 1985, at age 56. The immediate cause of death was unknown with metastatic adenocarcinoma of the lung as a significant cause contributing to death. 2. There is no evidence that the fatal disability was present during service or manifested in the year following the veteran's release from active duty. 3. There is no evidence, which connects the fatal disability to exposure to ionizing radiation or any other disease or injury during service. 4. The veteran was not service connected for any disability. CONCLUSIONS OF LAW 1. The veteran's metastatic lung disease was not incurred in or aggravated by service, nor may service incurrence of metastatic lung disease be presumed, nor was the veteran's cancer the result of exposure to ionizing radiation in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (1999). 2. A disability incurred in or aggravated by service did not cause or contribute substantially and materially to the cause of the veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1999). 3. The claim for service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The certificate of death reflects that the veteran died in January 1985, age 55. The cause of death was unknown due to or as a consequence of metastatic carcinoma of the lung. There was no autopsy. The appellant contends that the lung cancer was the result of exposure to radiation in service. She reports that the veteran served in the Nevada Desert when the atomic bomb was tested and that the veteran participated in a radiation risk activity. She asserts that lung cancer is a radiogenic disease. The appellant's representative, in the substantive appeal, asserted that the case was improperly developed. However, a review of the record shows that the claim was fully processed and that the applicable regulations were applied. The RO attempted to obtain the service personnel records and received only a Form DD 214. National Personnel Records Center indicated that there was fire related service and no records were available. In June 1984 the veteran was seen at a VA facility with a 6- month history of a mass on the right submandibular area. He also complained of chest pain. Biopsy revealed epithelial neoplasm, probably squamous cell carcinoma. The discharge diagnosis was poorly differentiated squamous cell carcinoma of the lung with metastasis to the right neck lymph nodes. In July 1984, it was determined that there was primary right bronchogenic carcinoma. VA medical records, dated January 1985 indicate that the veteran had widely metastatic adenocarcinoma of the lungs and was being treated at home for severe pain. He was received in the VA emergency room after suffering cardiopulmonary arrest. Resuscitative efforts did not have an effect. The veteran was in receipt of non-service connected pension at the time of death. To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Lung cancer will be presumed to have been incurred in service if it was manifested to a 10 percent degree of disability within one year of the veteran's separation from active service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Also, service connection for a disability alleged to be the result of exposure to radiation in service which first manifests itself after any applicable period specified in 38 C.F.R. § 3.307 may only be established by demonstration of a causal relationship between the radiation dose and the claimed disability. See, 38 C.F.R. §§ 3.304, 3.311; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). This is the case unless service connection may be established by applying the presumptions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). For reasons discussed below, the claim is not well grounded. Although the RO did not specifically state that it denied the claim on the basis that it was not well grounded, the Board concludes that this was harmless. See Edenfield v. Brown, 8 Vet. App. 384 (1995). The rating decisions, statement of the case and supplemental statement of the case adequately informed the appellant of the lack of evidence to support her claim in accordance with 38 U.S.C.A. § 5103 (West 1991). See Robinette v. Brown, 8 Vet. App. 69 (1995); Meyer v. Brown, 9 Vet. App. 425, 429 (1996). The appellant has not reported that any other pertinent evidence might be available. See Epps v. Brown, 9 Vet. App. 341, 344 (1996). The appellant must present a "well grounded" claim. That is, she must present a claim, which is plausible. 38 U.S.C.A. § 5107(a) (West 1991). Service connection is granted for disabilities resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991). That means that for a claim of service connection, there must be evidence of a current disability, evidence of disease or injury during service and evidence of a link between the two. Further, the evidence must be competent. That is, an injury during service may be verified by medical or lay witness statements; however, the presence of a current disability requires a medical diagnosis; and, where an opinion is used to link the current disorder to a cause during service, a competent opinion of a medical professional is required. See Caluza v. Brown, 7 Vet. App. 498 (1995). Direct Service Connection In this instance, there is evidence of the lung cancer. However, there is no evidence of pertinent disease or injury during service and there is no evidence from a competent medical source which connects the fatal cancer with disease or injury during service. There is competent medical evidence against a connection. Presumed Service Connection Law allows VA to presume that a cancer was incurred in service if it is manifested to a degree of 10 percent or more in the first year after the veteran left active service. In this case, there is no such evidence from a competent medical source. Radiation Exposure The appellant contends that her husband's death was due to radiation exposure during service. The appellant asserts that the veteran's death was caused by exposure to ionizing radiation in the Nevada Desert when the atomic bomb was tested. In a letter dated September 1996, the Defense Nuclear Agency (DNA) confirmed that the veteran participated in Operation TEAPOT. A radiation dose assessment was completed for him. A copy of the dose assessment was forwarded to the RO. In addition, an Executive Summary from a National Academy of Sciences (NAS) report, which addressed the accuracy of the radiation exposure information, was provided. Consequently, the veteran is a radiation-exposed veteran for the purpose of the presumptions provided by law and regulation. 38 C.F.R. § 3.309(d) (1999). Claims based upon exposure to ionizing radiation are governed by 38 U.S.C.A. § 1112(c) (West 1991) and 38 C.F.R. § 3.311(b) (1999). Each provides a separate and distinct basis for establishing service connection based on exposure to ionizing radiation in service. Under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309, there is a presumption of service connection for certain diseases specific to radiation exposed veterans, which do not include lung cancer, when the specified disease becomes manifest in a veteran who participated in a "radiation-risk activity." The term "radiation risk activity" includes onsite participation in a test involving the atmospheric detonation of a nuclear device. The term "onsite participation" includes Operation TEAPOT during the period beginning on February 18, 1955 and ending on June 10, 1955. 38 C.F.R. § 3.309(d)(3) (1999). Looking to the provisions of 38 C.F.R. § 3.311 (1999), for a claim of service-connected for the cause of the veteran's death due to ionizing radiation to be well grounded, there must be 3 elements of evidence [See Wandell v. West, 11 Vet. App. 200 (1998)]: i) A veteran was exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (ii) The veteran subsequently developed a radiogenic disease; and (iii) Such disease first became manifest within the period specified in paragraph (b)(5) of section 3.311. Here, there is evidence on all of the elements. The veteran was exposed to ionizing radiation as a result of participation in atmospheric testing of nuclear weapons during Operation TEAPOT. 38 C.F.R. § 3.309(d)(3)(iv)(K). The veteran's lung cancer was a radiogenic disease. 38 C.F.R. § 3.311(b)(2)(iv). Further, it was first manifested more than 5 years after the claimed exposure in accordance with 38 C.F.R. § 3.311(b)(5)(iv). Thus, this case requires additional development under 38 C.F.R. § 3.311(b)(iii). The additional development required for "radiogenic" diseases, which include lung cancer, under 38 C.F.R. § 3.311 includes forwarding the case to the VA Under Secretary for Benefits to determine whether the veteran's lung cancer resulted from exposure to ionizing radiation. In February 1997 the Director of Compensation and Pension Service requested an opinion from the Under Secretary for Health as to whether it is likely, unlikely, or approximately as likely as not that the veteran's lung cancer resulted from exposure to ionizing radiation in service. The Director of Compensation and Pension Service provided that metastatic squamous cell carcinoma of the lung was diagnosed in June 1984 and that the veteran died from this disease in January 1985. The Defense Special Weapons Agency confirmed the veteran's presence at Operation TEAPOT from January 1955 to May 1955. A search of dosimetry data revealed no record of radiation exposure for the veteran. Scientific dose reconstruction indicated that he would have received a probable dose of 1.04 rem gamma. The dose for neutron radiation was assessed at 0.46 rem. The total external dose received by the veteran was 1.5 rem (upper bound of 4.3). The total committed dose equivalent to the lung was less than 0.15 rem. The Director of Compensation and Pension Service reported that at the time of exposure the veteran was 26 years old. The lung cancer was diagnosed approximately 29 years later. The veteran smoked 2 to 3 packs of cigarettes per day for more than 30 years. Lung cancer was not one of the presumptive diseases listed in 38 C.F.R. § 3.309(d) for radiation exposed veterans. In March 1997 the Chief Public Health and Environmental Hazards Officer replied that it was unlikely that the veteran's lung cancer could be attributed to exposure to ionizing radiation in service. The Chief Public Health and Environmental Hazards Officer indicated that it was calculated that exposure to 39.48 rads or less at age 26 in a known regular smoker provides a 99 percent credibility that there was no reasonable possibility that it was as likely as not that the veteran's lung cancer was related to exposure to ionizing radiation. When presented with the facts of this claim, a representatives of the VA Under Secretaries for Benefits and Health determined that based on the veteran's low level of exposure to ionizing radiation while in service and his regular smoking of cigarettes it is "unlikely" that his lung cancer was the result of such exposure. Therefore, service connection for the veteran's lung cancer is not warranted on a presumptive basis as a "radiogenic" disease under 38 C.F.R. § 3.311(b)(2). There is no medical opinion or other competent opinion which links the fatal disease processes to the veteran's exposure to radiation in service. Opinions were obtained in accordance with the applicable law and regulations and, as set forth above, these opinions are against any connection. As there is no competent evidence of a connection, the claim asserting that death was due to radiation exposure, in service, is not well grounded. In the alternative, if the claim is well grounded because there is a listed 38 C.F.R. § 3.311 disease and a history of exposure, the claim is denied on the merits. Regardless of whether the claim is well grounded, there were duties to develop the record, including referral of the case to the appropriate authorities and searching for service department records. That was accomplished. However, once all the competent medical opinions were associated with the claims file, there was only one conclusion. There is no relationship between the veteran's disease process and service, including radiation exposure during service. The preponderance of the evidence is against the claim and there is no doubt to be resolved. ORDER The claim for service connection for the cause of the veteran's death is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals