Citation Nr: 0001971 Decision Date: 01/25/00 Archive Date: 02/02/00 DOCKET NO. 95-42 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a heart disorder, including as secondary to exposure to ionizing radiation. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran had active military service from July 1956 to October 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied, in pertinent part, service connection for exposure to ionizing radiation, to include a heart disorder. In May 1995, a notice of disagreement was received by the RO in which the veteran expressed disagreement with the denial of service connection for residuals of radiation exposure, to include a heart disorder, nervousness, depression, and gout. In May 1995, the veteran was issued a statement of the case in which the RO characterized the issues in this case as service connection for residuals of exposure to ionizing radiation; service connection for a heart disorder; service connection for a nervous condition, to include post-traumatic stress disorder (PTSD); and service connection for gout. In June 1997, the veteran was afforded a personal hearing at the RO before the undersigned member of the Board. At this Travel Board hearing, the veteran indicated that the issues on appeal were appropriately characterized as service connection for gout; service connection for a nervous disorder, to include PTSD; and service connection for a heart disorder. The veteran further confirmed that he sought service connection for each of the above issues as secondary to exposure to ionizing radiation. In a November 1997 decision, the Board denied the claims of entitlement to service connection for gout and a nervous disorder, to include PTSD, to include as secondary to exposure to ionizing radiation, as not well-grounded. The Board remanded the issue of service connection for a heart disorder, including as secondary to exposure to ionizing radiation to the RO for further development. Following accomplishment of the requested development, the RO continued the denial of the issue on appeal, and this issue has since been returned to the Board for further appellate consideration. The Board's decision on the claims for service connection for a heart disorder, including as secondary to exposure to ionizing radiation is set forth below. The Board notes that the veteran filed a Motion for Extension of Time until September 12, 1999, to reply to the most recent supplemental statement of the case issued in April 1999. The Board notes that his case was held until after that date, but that no additional statements or evidence have been received in connection with the case subsequent to the August 1999 written brief presentation of the veteran's representative. . FINDINGS OF FACT 1. The veteran served in the Unites States Navy from July 1956 to October 1960. He had 3 years and 11 months of foreign/sea service and served aboard the USS Philip which might have been close enough to the test site of Operation Hardtack I for the veteran to have seen a high altitude rocket detonation blast. 2. The medical evidence shows that a heart disability was first manifested many years after the veteran's discharge from active duty. 3. The veteran's heart disability is not among the diseases recognized by the VA to be specific to radiation-exposed veterans; these diseases only include leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary gland, and cancer of the urinary tract. 4. The veteran's heart disability is not among the diseases recognized by the VA to be "radiogenic diseases;" these diseases only include all forms of leukemia except chronic lymphatic (lymphocytic) leukemia, thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum; and lymphomas other than Hodgkin's disease. 5. There is no competent medical evidence of a nexus between current heart disability and any incident of service, to include competent medical evidence showing that arteriosclerosis, cardiovascular-renal disease, valvular heart disease, and/or hypertension were diagnosed within one year of the veteran's discharge from service. CONCLUSION OF LAW The claim for service connection for heart disability, including as due to exposure to ionizing radiation during service, is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background In June 1997, the veteran was afforded a personal hearing at the RO before the undersigned member of the Board. During this hearing and in written correspondence, the veteran asserted that he was exposed to ionizing radiation during service. He maintained that while stations aboard the USS Philip, he witnessed a hydrogen explosion which was part of Operation Hardtack I. He related that he was exposed from the waist up. Thereafter, he related that he became sick for a 3 to 4 day period and was provided pills. Following service, he indicated that he initially had heart problems in 1986 and had undergone multiple heart procedures. At the outset, in the April 1999 supplemental statement of the case, the RO indicated that that Operation Hardtack I 1958, U.S., Atmospheric Nuclear Weapons Tests, Nuclear Test Personnel Review did not show that the USS Philip was involved in the testing, but it was acknowledged that the USS Philip might have been close enough to the test site for the veteran to have seen the detonation blast. The service medical records are negative for any complaints, findings, or diagnosis of a heart disability. The post-service medical records reflect both VA and private treatment of heart disability. However, this treatment was not rendered until 1991 and thereafter. The veteran was admitted to a VA domiciliary facility from October 1991 to November 1992 for treatment of multiple cardiovascular disabilities and procedures to include cardiac catheterization which were performed during VA hospitalization. His records show that the veteran had a history of congestive heart failure, two heart attacks, and two percutaneous transluminal coronary angioplasties (PTCAs). In January 1993, the veteran was treated by a physician affiliated with the Miami Valley Hospital for left anterior descending (LAD) obstruction and right coronary obstruction. He was thereafter treated from August to November 1994 for complaints of angina and ischemia. Another cardiac catheterization was recommended. In September 1994, the veteran was afforded a VA general medical examination which revealed coronary artery disease. In December 1994, the veteran was admitted to Miami Valley Hospital for angioplasty of the right coronary artery. Right coronary artery lesion was diagnosed. In May 1995, the veteran underwent another cardiac catheterization. In June 1995, the veteran was hospitalized at a VA facility for coronary artery bypass grafting times three. Thereafter, he was admitted to a VA domiciliary to complete rehabilitation. In December 1995, he underwent another cardiac catheterization as well as coronary angiogram and left ventriculogram. In August 1996, the veteran was treated for arteriosclerotic heart disease (ASHD). In July 1997, the veteran was seen at the Miami Valley Hospital for questionable unstable angina. Cardiac testing and evaluation revealed three vessel coronary artery disease manifested by complete of high grade stenosis of the right coronary artery, circumflex and LAD with patent graft. Hypertension was also noted. In September 1997, veteran was admitted to Miami Valley Hospital for another cardiac catheterization as well as coronary angiography and left ventriculography. The Board notes that in the aforementioned post-service medical records, there is no medical opinion establishing a nexus between the veteran's heart disability and service to include alleged exposure to radiation during service. The initial record of treatment is in 1991. There is no medical opinion which establishes that a heart disability was present within one year of the veteran's discharge from service. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. In addition, service connection may be granted for a chronic disease, including arteriosclerosis, cardiovascular-renal disease, valvular heart disease, and/or hypertension, if manifested to a compensable degree with one year following service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Regulations specifically governing claims for service connection due to exposure to ionizing radiation in service are set forth, and will be addressed, below. However, the threshold question to be addressed with respect to this claim for service connection is whether the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If not, the claim must fail and there is no further duty to assist in its development. Id.; Murphy v. Derwinski, 1 Vet. App. 78 (1990). This requirement has been reaffirmed by the United States Court of Appeals for the Federal Circuit, in its decision in Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998). That decision upheld the earlier decision of 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") which made clear that it would be error for the Board to proceed to the merits of a claim which is not well-grounded. Epps v. Brown, 9 Vet. App. 341 (1996). In order for claim for service connection to be well- grounded, there must be competent evidence of: (1) a current disability (usually, a medical diagnosis); (2) the incurrence or aggravation of a disease or injury in service (lay or medical evidence, as appropriate); and (3) a nexus (that is, a link or a connection) between the in-service injury or aggravation and the current disability. Competent medical evidence is required to satisfy this third prong. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). "Although the claim need not be conclusive, the statute [38 U.S.C.A. § 5107] provides that [the claim] must be accompanied by evidence" in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links the current disability to a period of military service or to an already service-connected disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Montgomery v. Brown, 4 Vet. App. 343 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection manifested itself to a compensable degree within the prescribed period. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). At the outset, the Board notes that the veteran is a lay person without appropriate medical training and expertise; as such, his assertions regarding medical causation are not probative because lay persons are not competent to offer medical opinions. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The Board will consider the evidence of record, in light of the applicable laws and regulations, in order to ascertain if his assertions are supported by the competent medical evidence in this case. Diseases specific to radiation-exposed veterans, such as various forms of cancers, listed under 38 C.F.R. § 3.309(d), will be presumed to have been incurred in active service if the veteran participated in a "radiation risk activity" such as onsite participation in an atmospheric nuclear test. 38 C.F.R. § 3.309(d)(3)(ii). The diseases recognized by the VA to be specific to radiation-exposed veterans are leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary gland, and cancer of the urinary tract. 38 C.F.R. § 3.309(d)(2). Other "radiogenic" diseases, such as any form of cancer, listed under 38 C.F.R. § 3.311(b)(2), found 5 years or more after service in an ionizing radiation exposed veteran may be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. the diseases recognized by the VA to be "radiogenic diseases;" are all forms of leukemia except chronic lymphatic (lymphocytic) leukemia, thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non- malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum; and lymphomas other than Hodgkin's disease. However, service connection may also be granted for disability based on exposure to ionizing radiation, like all disabilities, when there is specific medical evidence linking it to such incident. Combee v. Brown, 34 F.3d 1039, 1043- 45 (Fed. Cir. 1994). Thus, service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. First, there are certain types of cancer that are presumptively service- connected if they become manifest in a radiation-exposed veteran. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service-connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as either a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(b)(i), (ii). 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation, and does not refer to any other types of radiation exposure. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. "Radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes the following: thyroid cancer, breast cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2)(i)-(xxiv). Section 3.311(b)(5) requires that bone cancer become manifest within 30 years after exposure, and that prostate cancer become manifest 5 years or more after exposure. 38 C.F.R. § 3.311(b)(5). The Board (like the RO) has carefully reviewed this appeal under all three of the legal theories by which service connection could be granted for the veteran's skin cancer. However, the veteran cannot prevail in his claim for service connection under any of the theories. First, the claimed disability is not included in the list of conditions that may be presumptively service-connected by an individual who participated in a radiation-risk activity, as set forth at 38 C.F.R. § 3.309(d). Secondly, the claimed disability is not included in the list of "radiogenic diseases" at 38 C.F.R. § 3.311(b). As noted, that regulation does not create a presumption of service connection, but merely accords the claimant special processing of the claim. However, since the veteran does not have one of the "radiogenic diseases," this was not necessary. Thirdly, the Board has also whether service connection may be granted pursuant to the traditional approach to service- connection claims, i.e., on the basis of medical evidence of a specific nexus between service and the claimed disability. See Combee; Ramey v. Gober, 120 F.3d 1239, 1245 (Fed. Cir. 1997). However, as indicated above, the post-service medical records do not include a medical opinion establishing a nexus between the veteran's heart disability and service to include alleged exposure to radiation during service. Likewise, there is no medical evidence or opinion that establishes that a heart disability was present within one year of the veteran's discharge from service. In the absence of competent medical evidence of a nexus between current heart disability and service (to include exposure to radiation therein), to include evidence that the disability was manifested to a compensable degree within one year of discharge from service, there is no basis upon which the Board can conclude that the veteran's heart disability is attributable to in-service radiation exposure or other incident of service. The claim is not well-grounded as the third prong of Caluza has not been met. For all the foregoing reasons, the Board concludes that the veteran has failed to submit a well-grounded claim for service connection for heart disability. As such, VA is under no duty to assist the veteran in developing the facts pertinent to the claim. See Epps, 126 F.3d at 1468. Furthermore, the Board is aware of no circumstances in this matter that would put the VA on notice that any additional relevant evidence may exist which, if obtained, would well ground the claim of entitlement to service connection. See McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). While, with respect to claims that are not well-grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). A review of the correspondence in this case shows that the RO fulfilled its obligation under 38 U.S.C.A. § 5103(a) (West 1991) as the veteran was fully informed of the reason for the denial of his claims and was advised of what evidence was needed in order to support his claims. Finally, the Board acknowledges that the issue is being disposed of in a manner that differs from that employed by the RO. The RO denied the veteran's claim on the merits, while the Board has concluded that the claims are not well grounded. However, the Court has held that "when an RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded claim analysis." Meyer v. Brown, 9 Vet. App. 425, 432 (1996). ORDER The claim for service connection for heart disability, including as a result of radiation exposure, is denied as not well grounded. JACQUELINE E. MONROE Member, Board of Veterans' Appeals