BVA9500337 DOCKET NO. 91-21 958 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. K. ErkenBrack, Counsel INTRODUCTION The veteran, who served on active duty from November 1940 to July 1945 and from May 1946 to June 1966, died in February 1988. This appeal arises from a rating decision in May 1988 of the Department of Veterans Affairs (VA) Regional Office (RO) at Houston, Texas. The Board of Veterans' Appeals (Board) remanded the case in November 1991 for a dose assessment of the veteran's exposure to ionizing radiation during service by the Defense Nuclear Agency (DNA) and development of the case in accordance with 59 Fed. Reg. 5107 (1994) (To be codified at 38 C.F.R. § 3.311), formerly 38 C.F.R. § 3.311b, pertaining to claims based on exposure to ionizing radiation. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that the veteran died due in part to a heart condition which began during service. She feels that headaches and chest pain during service were symptomatic of heart disease. She asserts that improper circulation due to heart dysfunction and a head injury during service caused his headaches. She maintains that he was exposed to ionizing radiation during his participation in atmospheric nuclear testing during service, at Operation TEAPOT, and this caused his fatal hepatocellular carcinoma (liver cancer). It is requested that the benefit of all doubt be resolved in the appellant's favor. 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 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 claim to establish service connection for the cause of the veteran's death. FINDINGS OF FACT 1. All the evidence necessary for an equitable disposition of the appellant's claim has been obtained by RO. 2. The veteran, who served on active duty from November 1940 to July 1945 and from May 1946 to June 1966, died in February 1988, from autopsy-confirmed hepatocellular carcinoma, due to cirrhosis of the liver and chronic active post-transfusional non-A non-B hepatitis. Severe atherosclerotic heart disease was a contributory cause of death. 3. At the time of death, service connection was in effect for hypertrophic arthritis of the cervical, dorsal and lumbar spine with lumbosacral strain, rated as 10 percent disabling, prostatitis, rated as 10 percent disabling, and malaria and a laceration scar of the forehead, each rated as not compensably disabling, for a combined disability evaluation of 20 percent. 4. Liver cancer, cirrhosis, hepatitis, and organic heart disease, respectively, were not shown to have been present during or until over 5 years following service; liver cancer was not caused by inservice exposure to ionizing radiation. CONCLUSIONS OF LAW 1. Liver cancer, cirrhosis, chronic hepatitis, and atherosclerotic heart disease, respectively, were not incurred in or aggravated by service; nor may liver cancer, cirrhosis, and/or atherosclerotic heart disease be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(a) (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993); 59 Fed. Reg. 5107 (1994) (To be codified at 38 C.F.R. § 3.311). 2. Service-connected disability did not cause or contribute substantially or materially to cause the veteran's death. 38 U.S.C.A. §§ 1310 and 5107(a) (West 1991); 38 C.F.R. § 3.312 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran died in February 1988 at the age of 66. He was hospitalized at a service department facility. The original death certificate disclosed that he died from end stage liver disease due to chronic active hepatitis. The contributory cause of death was arteriosclerotic heart disease. An autopsy was performed. The amended death certificate discloses that he died from hepatocellular carcinoma due to cirrhosis of the liver and chronic active post-transfusional non-A non-B hepatitis. The contributory cause of death was severe atherosclerotic heart disease. At the time of death, service connection was in effect for hypertrophic arthritis of the cervical, dorsal and lumbar spine with lumbosacral strain, rated as 10 percent disabling, prostatitis, rated as 10 percent disabling, and malaria and a laceration scar of the forehead, each rated as not compensably disabling, for a combined disability evaluation of 20 percent. The veteran was hospitalized in March 1941 with symptoms that included headaches. Acute, bilateral follicular tonsillitis and right peritonsillar abscess were treated. He was discharged to duty, improved. He was hospitalized in February 1944 with symptoms including severe headache and a cough with some pain in the left chest. His cough was productive and foul-smelling. Chest examination showed inspiratory rales in the left upper outer chest. The heart was negative. X-ray examinations of the chest were normal for the heart but disclosed right upper lobe lobar pneumonia. Over the course of treatment, X-ray confirmed that the lungs cleared. The final diagnosis was severe, atypical, primary, right upper lobe pneumonia. He was discharged to duty. Later in February 1944, he again developed fever and chest pain. Questionable recurrence of pneumonia and complicating malaria were suggested. This apparently resolved. He was hospitalized in March 1944 for symptoms including chest pain and headache. X-ray examination of the chest showed negative heart findings. Acute bronchitis was diagnosed. He was hospitalized in May 1944 with cough and chest pain. The chest and abdominal examinations were negative. Malarial smear was positive. The spleen was not palpable. Repeated malarial smear was negative after treatment. He was discharged to duty. The diagnosis were tertian malaria and nasopharyngitis. During hospitalization in December 1944 for acute, moderately severe, catarrhal nasopharyngitis, abdominal examination showed that the liver was not palpable. The heart was not enlarged. Rhythm was regular. No murmurs were detected. X-ray examination of the chest was negative. On a general physical examination in July 1945, blood pressure was 120/70. Chest X-ray was negative. In May 1946, blood pressure was 140/82. Chest X-ray was negative. The cardiovascular system was normal. In October 1946, he was seen for abdominal cramps. There was slight right upper quadrant tenderness. The liver edge was tender and palpable. There was no rebound or right lower quadrant tenderness. It was noted that he had been working with paint for 4 months. The impressions were cramps with questionable constipation and questionable lead colic. No further note of record was made regarding this episode. He was hospitalized in September and October 1947 for symptoms of upper chest pain with fever and generalized aching. He reportedly had a first attack of malaria in 1944 and last received medication for in 1945. No cardiovascular abnormality was indicated. Blood pressure was 128/72. Old recurrent malaria was the initial impression. X-ray examination of the chest was negative for any abnormality. He developed a slight headache. The final diagnosis was undulant fever. In November 1947, the veteran was hospitalized for pharyngitis and cervical spine myositis. Blood pressure was 128/65. No heart abnormality was noted. The liver was palpated at the costal margin and the edge was sharp. No other abnormality was indicated. In May 1949, blood pressure was 120/68 and 120/88. X-ray examination of the chest was negative. No heart or liver abnormality was disclosed on examination. It was noted that he had recovered normally from pneumonia he had had in 1944. Also in May 1949, he was hospitalized for tonsillitis. He had had headaches and nausea. In May 1950, blood pressure was 120/80 and 100/80. Chest X-ray was negative. The heart and liver showed no significant abnormality. In February 1952, he was treated for an upper respiratory infection accompanied by chest pain. The chest was clear to percussion and auscultation. In August 1954, X-ray examination of the chest was negative. Blood pressure was 130/84. No heart or liver abnormality was detected. In March 1956, he reportedly had been experiencing pressure and pain of the chest. He also complained of trouble focusing his eyes and dizziness. Blood pressure was 120/70. The chest was clear and the heart was negative. In July 1956, blood pressure was 125/80. Electrocardiographic records on three occasions in 1956 were essentially normal. In August 1956, blood pressure was 105/65. Chest X-ray examination in December 1956 showed no evidence of pathological change in the heart and great vessels. Blood pressure was 120/66. In January 1959, he was hospitalized for a work-up for probable histamine cephalalgia. Migraine, cause unknown, was diagnosed. In August 1961, he was seen for chest pain, a sore throat and fever of 99 degrees. The pharynx was inflamed, for which he received penicillin and saline gargles. He was returned to duty at the end of the month. He was evaluated for headaches in 1962. His history was considered strongly suggestive of rhinitis and sinusitis. On a general physical examination in August 1963, occasional shortness of breath and chest pain were related to a past history of 3 episodes of pneumonia without complications or sequela. In August 1963, the veteran was evaluated for complaints of shortness of breath and chest pain. It was noted that he also suffered from headaches. Chest pain reportedly was of recent origin, 2 or 3 months, and sharp in quality, centered along the costochondral junction on both sides, occasionally associated with a snapping sound and questionably radiating to the back. There had been no episodes of tachycardia or skipped heart beats. Headaches were associated with rhinorrhea and inflammation of the conjunctiva. They were thought to be allergic. Cardiovascular examination showed no heart murmurs. The heart did not appear enlarged to percussion. Blood pressure was termed normal at 126/80. Pulse was 84 per minute and regular. Considerable sweating from the armpits was noted. Electrocardiograms were within normal limits, as were chest X-rays. The examiner felt that the chest pain was best explained on the basis of costochondral arthritis of low degree, worse on days when other joints were active, and by its sharp nature and distribution very much like heart pain. It was also said that headaches appeared to be of an allergic nature. They were treated with Actifed. The impressions included allergic type sinus headaches. Also in August 1963, the veteran was evaluated for headaches. Onset reportedly was in 1953 and headache appeared to be seasonal and environmental. He reportedly had been hospitalized in 1959 and migraine had been diagnosed. He described them as a severe, lancinating type pain occurring over the right eye, temple and cheek, and preceded by mild anesthesia of the right cheek. They appeared primarily at night and might occur 3 or 4 times a night. They were relieved by his getting up, taking Anacin, and washing his face in cold water. It also was found that taking two beers could result in headaches. The headaches reportedly were not relieved by migraine medication. When he was seen for his headaches about a year previously, his history was felt to be strongly suggestive of allergic rhinitis and sinusitis, possibly seasonal and environmental. He was given Benadryl, which provided considerable relief. He stated that Benadryl had made him drowsy and he had switched to Actifed. Actifed appeared to be as effective as Benadryl and prevented his symptoms. He indicated that he had stomach (dysfunctional bowel) symptoms associated with headaches. The throat showed chronic pharyngitis with chronic lymphoid hyperplasia and mild hypertrophy of the lateral band bilaterally. There was moderate, chronic rhinitis bilaterally. Nasal mucosa were pale and slightly boggy anterior to posterior. The impressions were chronic nasopharyngitis, probably allergic, and possible allergic headache with histamine headache and sphenopalatine ganglion headache to be ruled-out. A histamine provocative test was negative. Blood pressure readings were 110-130/78-82. A neurologic examination in September 1963 was accomplished. An electroencephalogram was normal. The impression was probable allergic headache (by history). In September 1964, the veteran's headaches then reportedly of 11 years' duration had attributes of being almost invariably nocturnal, usually when he was asleep; precipitated by ingestion of any form of alcohol; unilateral and distributed over the middle branch of the 3d nerve and both sharp and pounding in quality; originally seasonally clustered; temporarily relieved with antihistamines; and with photophobia, watering of the eye, and some nausea and vomiting, with relief after vomiting. Status post ganglion headache, tic doloreaux, allergic headache, migraine, and styloid process headache were to be ruled-out. Blood pressure was 130/82. Head, eye, ear, nose and throat examination show no abnormality. Neurologic examination indicated nothing abnormal. The impression was deferred. In October 1984, Horton's cephalalgia was the medical opinion of his headache type and he experienced relief except for a few continuing nocturnal headaches with Sansert. In November 1964, he was having right-sided headaches with tenderness in the right temporal area following the headaches. Questionable temporal arteritis was the impression. On a December 1964 "Record of Exposure to Ionizing Radiation," DD Form 1141, no measurable exposure was indicated. In March 1965, the veteran was hospitalized with complaints of right subscapular pain radiating into the lung fields. Two past episodes of bronchopneumonia in 1943 and 1944, cured with antibiotics, were noted without complications or sequelae. The final diagnoses included bacterial bronchitis. In November 1965, he was experiencing chest pain on coughing. There were a few crackling rales in the left base. X-ray examination of the chest was negative. The impression was bronchitis. On an evaluation for low back pain prior to retirement, it was stated that the veteran was treated for "vascular headaches" in 1953 to 1963, with Sansert. His symptoms reportedly had cleared and he had had no headaches for the previous year. Blood pressure was 140/98. An electrocardiogram was normal. No heart or liver abnormality was detected on general physical examination. On the later Medical Board examination, he complained that he still had vascular headaches and chest pain. Chest X-ray was normal. Service department clinical records dated following active duty show, in December 1966, that the veteran's headaches recurred after having been absent since March 1965. In January 1967, it was stated that they were more of a migraine type and had become much more severe since the veteran moved to New Mexico from Texas after his retirement from active service. An electrocardiogram in March 1969 showed a possibility of inferior infarction of indeterminate age. Blood pressure was 155/88. In April 1969, he complained of a sharp pain in the right side of his chest. Blood pressure was 130/84. No heart abnormality was indicated. Electrocardiogram and chest X-rays were normal. It was stated that the March 1969 indication of inferior infarction was unlikely because of the change to normal pattern. He complained of minimal tenderness in the costochondral junction. In May 1969, blood pressure was 130/95 and 130/90. The eyes, including fundi, were normal. The heart was normal. There was some liver tenderness on abdominal examination but no guarding, masses, etc. In October 1969, he was treated for severe headaches and ear pain. After an ear, nose and throat examination and normal sinus X-rays, the impression was suspected increased facial and temporal pain due to teeth clenching and misuse of muscles of mastication. In March 1970, chest pain to percussion over T2-3 was indicated. Blood pressure was 142/90. The cardiovascular system was within normal limits. In August 1970, he was examined for anterior and posterior costal margin aching with slight cough. The pain reportedly was not pleuritic in nature. The clinical impression was arthritis. The veteran was hospitalized in August and September 1970 with severe left precordial chest pain, which extended into the interscapular area and down the arm. The pain had persisted for approximately an hour and he was admitted through the emergency room. It was noted that he had been seen earlier in the month for the costal margin pain, which had been assumed to be fibrositic in nature. He had been hospitalized earlier in the year for an evaluation of chest pain which was assumed to be secondary to underlying degenerative arthritis. Blood pressure was 150/100. A definite point of maximum impulse of the heart could not be localized. There was an occasional premature ventricular contraction followed by a full compensatory phase. The liver and spleen were not palpable. An initial electrocardiogram revealed multiple unifocal ventricular premature contractions. He developed a transitory fourth heart sound or atrial gallop during the first week of hospitalization but there was no other evidence of congestive heart failure. Serial electrocardiograms revealed an acute anteroseptal myocardial infarction. The final diagnoses included resolving anterioseptal myocardial infarction and chronic headaches, by history. Subsequently dated clinical records confirm the presence of atherosclerotic heart disease. During service department hospitalization in August and September 1971, examination revealed that the liver was not palpably enlarged. He had been hospitalized for chest pain. The primary diagnosis was acute coronary insufficiency, without sequelae (probable sub- endocardial myocardial infarction). When again hospitalized with an episode of chest pain in April and May 1972, the liver again was not palpably enlarged. The final diagnoses included atherosclerotic coronary artery disease, and acute inferior (diaphragmatic) myocardial infarction secondary to underlying coronary artery disease, complicated by clinical findings compatible with early congestive heart failure. A VA cardiovascular examination in November 1972 indicated that the veteran had not had hypertension and blood pressure was 105/80, bilaterally. Arteriosclerotic heart disease with abnormal electrocardiogram, angina, and dyspnea, Class IIC was diagnosed. A special gastrointestinal examination showed that the liver was not palpable. There was no epigastric tenderness. No abdominal masses or rigidity was felt. The February 1988 autopsy report contained the summary that the veteran presented in early February 1988 with increased abdominal swelling, anorexia and weight loss. He had begun to notice these symptoms in November 1987. A later liver spleen scan showed a questionable defect in the right lobe of the liver. He reportedly had had chronic active hepatitis first diagnosed in 1983, when he noticed decreased energy and was found to have increased liver function tests consistent with hepatitis. A liver biopsy in October 1983 showed portal tracts with the infiltrations of lymphs and plasma cells. This was originally believed to be secondary to blood transfusions during his coronary artery bypass graft in 1978, probably non-A non-B hepatitis, but a review of the records revealed elevated liver enzymes prior to the 1978 surgery. At the time of death, he had severe disease in multiple organ systems. The most striking finding was hepatocellular carcinoma arising in a severely cirrhotic liver and the presence of aggressive local invasion and distant metastases. The medical opinion was expressed that the veteran developed hepatocellular carcinoma in an end stage cirrhotic liver. The carcinoma metastasized, further compromising the veteran, who had been weakened by vascular disease and lung disease. The heart and other diseased systems could not overcome the stress of diffuse carcinomatosis. In his weakened condition and bedridden state after surgery, he was a prime candidate for pneumonia and pulmonary emboli. He developed pneumonia and his body could not sustain life. It was stated that cirrhosis was commonly associated with primary hepatocellular carcinoma. It was felt that cirrhosis may have occurred secondary to non-A non-B hepatitis infection incurred as a result of his coronary artery bypass procedure. It was expressed that the cause of death with cirrhosis, severe cardiovascular disease and chronic lung disease was hepatocellular carcinomatosis. In January 1993, the Defense Nuclear Agency (DNA) reported that the veteran was an Aircraft Maintenance Technician in the 4927th Test Squadron. During Operation TEAPOT, an atmospheric nuclear test series consisting of 14 nuclear events conducted at the Nevada test site from February to May 1955. He was on temporary duty at Indian Springs Air Force Base, Nevada (ISAFB), from April 2 to April 6, 1955. He had potential exposure scenarios of exposure to initial radiation to Shot HA, which occurred at 36620 feet above mean sea level, exposure to residual radiation from the first 10 shots in TEAPOT, and exposure to residual contamination while working on aircraft at the Nevada test site. No dosimetry was available. No ground survey data were compiled on Shot HA because of its low yield and high height of burst. Personnel at ISAFB were too distant from Shot HA burst point to have accrued a measurable dose from initial radiation. There was no instance of fallout at ISAFB throughout Operation TEAPOT. It was assumed that he remained at ISAFB throughout his April 2-6 tour of duty and during that time he performed maintenance work for 6 hours a day on aircraft with an intensity of 7mR/hr, the maximum level at which maintenance was permitted. The external dose assessment was found to be 0.15 rem, which was the upper bound based on the high-sided assumptions made in his exposure scenario. His internal dose assessment assumed, first, that he accrued no internal dose from inhalation of aircraft contamination because the sources of residual intensity in decontaminated aircraft were not readily resuspendable and, second, that Shot APPLE I produced the contamination on aircraft worked on by the veteran, and active measures were taken to decontaminate those aircraft before he worked on them. The 50- year committed dose equivalent to the liver was found to be less than 0.15 rem. The VA Acting Chief Medical Director for Environmental Medicine and Public Health (CMD) rendered an opinion on the case in March 1994 based on the veteran's development of hepatocellular carcinoma of the liver some 33 years after his last exposure to ionizing radiation. The dose assessment from DNA was accepted. The opinion indicated that it was calculated that exposure to 4.5 rad or less at age 33 provided a 99 percent credibility that there was no reasonable possibility that it was as likely as not that the veteran's liver cancer was related to his exposure to ionizing radiation. (CIRRPC Scientific Panel Report No. 6, 1988, page 29). Information in Health Effects of Exposure to Low Levels of Ionizing Radiation (BEIR V), 1990, pages 303 to 306, indicates serious doubt about the occurrence of primary liver cancer attributable to ionizing radiation from outside the body. Studies did indicate that liver cancers follow radiation by radionuclides within the body. It was expressed that the veteran's dose was lower than the cited value and it was highly unlikely that his disease could have been attributed to exposure to ionizing radiation in service. In March 1994, the VA Chief Benefits Director's designee indicated that in light of the CMD's opinion that there was no reasonable possibility that the veteran's hepatocellular carcinoma was the result of inservice exposure to ionizing radiation. II. Analysis This claim is well-grounded because it is plausible. All development of the record necessary to decide the claim has been accomplished. The clinical evidence of record, as reported in detail, basically speaks for itself in this case. The veteran's complaints of headaches and/or chest pain during service did not signify the presence of any chronic cardiovascular disease. Multiple chest X-rays, medical evaluations and electrocardiograms attest to this fact. There simply was no sign or symptom of arteriosclerotic heart disease until about 1970, well after his retirement from active service. In this regard, we note the single elevated blood pressure recorded at the approximate time of separation from service. However, the record does not show the consistently elevated blood pressures indicative of essential hypertension during service or even proximate to service. In fact, essential hypertension was never shown. In addition, there was no sign or symptom of any liver abnormality during service or prior to the early 1980's. As to the contention that the veteran's death was related to inservice radiation, the best scientific and medical evidence in this case is against it. The fatal primary liver cancer cannot be considered "radiopresumptive" under 38 U.S.C.A. § 1112(c) for the purpose of service connection because cirrhosis was indicated. It is a radiogenic condition under 38 C.F.R. § 3.311, but, based on the CMD's opinion, the VA Chief Benefits Director has concluded that there is no reasonable possibility that the inservice exposure to ionizing radiation caused the fatal liver cancer. (CONTINUED ON NEXT PAGE) Accordingly, there is no sound factual or legal basis for a favorable decision in this case. The benefit of the doubt rule is inapplicable here because there is no approximate balance between the favorable and the unfavorable evidence; the latter evidence predominates. ORDER Service connection for the cause of the veteran's death is denied. NANCY I. PHILLIPS 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.