Citation Nr: 0001732 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 90-51 459 ) DATE ) ) On appeal from 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: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Conner, Associate Counsel INTRODUCTION The veteran had active service in the U.S. Marine Corps from November 1945 to November 1948, and active service in the U.S. Air Force (USAF) from August 1950 to August 1973. This matter comes to the Board of Veterans' Appeals (Board) from an October 1989 rating decision of the Department of Veterans Affairs (VA) Houston Regional Office (RO) which denied service connection for the cause of the veteran's death, claimed secondary to ionizing radiation exposure in service. She duly appealed the RO determination, and by May 1991 decision, the Board upheld the RO denial. Due to an apparent administrative oversight, however, the appellant was not afforded a personal hearing on appeal in conformance with her request, prior to issuance of the Board's May 1991 decision. In light of this due process deficiency, the Board's May 1991 decision was vacated and in June 1992, she testified at a Board hearing in Washington, D.C. In February 1993, the Board remanded the matter for additional development of the evidence. While the matter was in remand status, however, the Member of the Board before whom the appellant testified in June 1992 left the Board's employment. Pursuant to her request, and in view of the provisions of 38 C.F.R. §§ 20.700, 20.707, the Board again remanded the matter in May 1999 to afford her the opportunity to testify at another Board hearing. In August 1999, she appeared and testified before the undersigned at the RO in conformance with her request. FINDINGS OF FACT 1. The service department has verified the veteran's presence at the Nevada Test Site during Operation Teapot. 2. The veteran was first diagnosed with acute myelogenous leukemia in September 1977. 3. The cause of his death in August 1979 was cardiopulmonary arrest due to gram negative septic shock due to acute myelogenous leukemia. CONCLUSIONS OF LAW 1. The veteran's acute myelogenous leukemia is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.309 (1999). 2. A service-connected disability caused or contributed substantially or materially to cause the veteran's death. 38 U.S.C.A. § 1310, 5107(a) (West 1991); 38 C.F.R. §§ 3.310, 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's service medical records are negative for clinical findings or notations of leukemia, anemia, or any other pertinent abnormality. Likewise, on October 1972 physical examination for the purpose of military retirement, no pertinent abnormalities were identified. Laboratory testing at that time showed that his hematocrit level was 46 percent. Subsequent service medical records show that in August 1973, he was seen for fatigue. A "cocci skin test" was ordered (presumably to test for the presence of coccidioidomycosis or valley fever; the results were positive. However, chest X-ray performed later that week showed no abnormalities. The remaining service medical records are negative for pertinent abnormality. The post-service medical records show that, between July 1974 and April 1977, the veteran was treated for disorders unrelated to the instant appeal, such as gout and low back pain. In May 1977, he sought treatment for a dull ache in the right upper quadrant. His symptoms continued without improvement and in September 1977, he was hospitalized for treatment. On admission, a three month history of 15 to 16 episodes of acute right upper quadrant pain with associated nausea, vomiting, and anorexia was noted. On work-up, he was found to have progressive anemia and a subsequent bone marrow biopsy was consistent with early acute lymphocytic leukemia. The veteran underwent several courses of chemotherapy between September 1977 and March 1978. A bone marrow aspiration in April 1978 was essentially normal; the diagnoses on discharge included acute myelogenous leukemia in complete remission. In July 1979, the veteran was rehospitalized with a presumed relapse of his acute myelogenous leukemia. In August 1979, he died. The death certificate lists the cause of death as cardiopulmonary arrest due to gram negative septic shock due to acute myelogenous leukemia. In September 1979, the appellant filed an application for dependency and indemnity compensation (DIC) benefits, claiming that the veteran's fatal acute myelogenous leukemia either had its onset in service, as evidenced by his treatment for amenia and/or Valley Fever, or subsequently developed post-service as a result of ionizing radiation exposure during his military career. In support of her claim, the appellant submitted a February 1979 statement completed by the veteran prior to his death, in which he outlined his claimed exposure to ionizing radiation during the his military career. He stated that in 1951, he was assigned to March Air Force Base (AFB) where his duties included loading and unloading atomic weapons from B- 29s. From 1953 to 1957, he stated that he was assigned to Walker AFB in New Mexico were he participated in many missions requiring constant contact with atomic and hydrogen weapons. During this period, he indicated that he participated in "Operation White Horse," as well as an exercise in which he flew threw a mushroom cloud at the Nevada Test Site. From November 1957 to March 1958, he indicated that he flew air sampling missions aboard B-36 aircraft over Alaska to detect atomic explosions by the former Soviet Union. From 1958 to 1964, he indicated that he was assigned to Mather AFB in Sacramento, California, where he flew many missions with hydrogen weapons aboard his aircraft. His service personnel records generally confirm his reported units and dates of assignment. The RO contacted several sources in an attempt to verify the veteran's claimed exposure to ionizing radiation in service. The National Personnel Records Center (NPRC) responded that the veteran's file did not contain a DD Forms 1141, Record of Occupational Exposure to Ionizing Radiation, or other information regarding any in-service radiation exposure. The Department of Energy responded that a search of dosimetry data pertaining to the veteran for the years of 1954 to 1956 was negative. The USAF Occupational and Environmental Health Laboratory indicated that there was no record of an exposure history pertaining to the veteran in the USAF Master Radiation History Repository. In October 1981, the Department of the Air Force indicated that in 1955, the veteran had been assigned to the 24th Bomb Squadron, 6th Bomb Wing, at Walker AFB in New Mexico. In 1955, it was noted that his unit, which flew B-36 aircraft, was assigned temporary duty for one month to participate in Operation Teapot. The unit's B-36s were reportedly scheduled to participate in an exercise in which they were to fly within 15 nautical miles of ground zero. However, historical records indicated that the exercise was canceled after takeoff and no aircraft "actually participated." It was noted that there was no historical record of "Operation White Horse," but the Air Force historian speculated that that could have been the code name for the 6th Bombardment Wing's scheduled participation in Teapot. In January 1983, the Board denied service connection for the cause of the veteran's death. In its decision, the Board found that service connection for leukemia on a direct basis was not warranted because there was no indication of leukemia in service or within any applicable presumptive period, and no evidence linking the veteran's post-service leukemia, first diagnosed in September 1977, to his period of service or any incident therein, including treatment for Valley Fever. In that regard, the Board noted that the type of leukemia from which the veteran died was normally rapidly fatal. In addition, the Board found that service connection for leukemia based on exposure to radiation in service was not warranted as the evidence did not verify that the veteran was actually exposed to radiation in service. In February 1986, VA notified the appellant that the guidelines under which claims based on exposure to ionizing radiation had recently been amended. See Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, 98 Stat. 2725, 2727-29 (1984). In part, these amendments provide a presumption of exposure to radiation at atmospheric detonations of nuclear weapons. The appellant was invited to submit an application to reopen her claim for consideration under the amended criteria. In May 1986, she indicated that she wished reconsideration of her claim of service connection for the cause of the veteran's death under amended criteria. She stated she had no further evidence to submit. II. Law and Regulations 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 (1999). 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 it must be shown that there was a causal connection. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Where a veteran served 90 days or more during a period of war and certain chronic diseases (including leukemia) become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). In addition, a disease associated with exposure to radiation listed in 38 C.F.R. § 3.309 will also be considered to have been incurred in service under the circumstances outlined in that section. Specifically, if a veteran, while on active duty, active duty for training, or inactive duty training, participated in a "radiation-risk activity," leukemia (other than chronic lymphocytic leukemia) shall be service connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 C.F.R. § 3.309(d). A "radiation risk activity" includes onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d)(3)(ii). The term "onsite participation" includes presence at the test site during the official operational period of an atmospheric nuclear test, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test; and presence at the test site or other test staging area during the six month period following the official operational period of an atmospheric nuclear test to perform official military duties in connection with completion of projects related to the nuclear test including decontamination of equipment used during the nuclear test. 38 C.F.R. § 3.309(d)(3)(ii)(A) and (B). For tests conducted by the United States, the term "operational period" means, in pertinent part, for operation TEAPOT, the period February 18 to June 10, 1955. 38 C.F.R. § 3.309(d)(3)(v)(K). Service connection may also be considered based on exposure to ionizing radiation under the provisions of 38 C.F.R. § 3.311 (1999). To consider service connection under section 3.311, the evidence must show the following: (1) the veteran was exposed to ionizing radiation in service; (2) he subsequently developed a "radiogenic disease"; and (3) such disease first became manifest within a period specified by the regulations. 38 C.F.R. § 3.311(b) (1999). Radiogenic disease for the purposes of 38 C.F.R. § 3.311 means a disease that may be induced by ionizing radiation and shall include all forms of leukemia except chronic lymphatic (lymphocytic) leukemia. 38 C.F.R. § 3.311(b)(2). The U.S. Court of Appeals for the Federal Circuit has held that a claimant must be given the opportunity to prove that exposure to ionizing radiation during service actually caused the claimed disability, thereby warranting service connection under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(d). See Combee v. Brown, 34 F.3d 1039, 1043-44 (1994). III. Analysis The appellant advances two theories of entitlement to service connection for the cause of the veteran's death. First, she argues that his fatal leukemia was first manifest in service, as evidenced by his treatment for Valley Fever and/or anemia in August 1973. Her second theory of entitlement is that the fatal leukemia resulted from his exposure to ionizing radiation in service. As indicated above, entitlement to service connection for leukemia claimed to be attributable to radiation exposure during service can be accomplished in three ways. First, direct service connection can be established by showing that the disease was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Second, there are specific types of cancer which may be service connected on a presumptive basis under 38 C.F.R. § 3.309(d). Third, 38 C.F.R. § 3.311(b) provides a list of "radiogenic diseases" which may be service connected provided that certain conditions specified in the regulation are met. See Ramey v. Gober, 120 F.3d 1239 (1997). Initially, the Board notes that leukemia was not clinically evident during the veteran's period of service or within the one-year presumptive period following service separation. In addition, the record contains no competent medical evidence linking his post-service leukemia (first diagnosed approximately four years after service separation) to his military service or any incident therein. Thus, service connection on a direct basis is not warranted. 38 U.S.C.A. §§ 1110, 1131; Epps v. Gober, 126 F.3d 1464, 1467- 68 (1997). The second theory advanced by the appellant is that the veteran's leukemia resulted from his exposure to ionizing radiation in service. In this regard, the Board notes that service connection claims based on in-service exposure to radiation may potentially be addressed under 38 C.F.R. §§ 3.309(d) or 3.311. In this case, the evidence shows that the veteran died of acute myelogenous leukemia in August 1979. Except for chronic lymphatic leukemia, any form of leukemia (including acute myelogenous leukemia) is considered a "disease specific to radiation-exposed veterans" under 38 C.F.R. § 3.309, and a "radiogenic disease" under 38 C.F.R. § 3.311. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). Thus, under 38 C.F.R. § 3.309(d), if the evidence shows that the veteran was a "radiation-exposed veteran" within the meaning of that regulation, his acute myelogenous leukemia shall be service connected. As set forth above, a "radiation-exposed veteran" is one who participated in a "radiation risk activity" during active service. A "radiation risk activity" includes "onsite participation" in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d)(3)(ii). "Onsite participation" includes presence at the test site during the official operational period of an atmospheric nuclear test. 38 C.F.R. § 3.309(d)(3)(ii)(A) and (B). Actual participation in the test is not required under the regulation. In this case, the Board finds that there is sufficient information of record from which to conclude that the veteran had "onsight participation" in Operation Teapot within the meaning of section 3.309(d). Specifically, the service department has verified that he and his unit (the 24th Bomb Squadron, 6th Bomb Wing) were assigned temporary duty for a month to participate in Operation Teapot at the Nevada Test Site. The unit's B-36s were scheduled to participate in an exercise in which they were to fly within several miles of ground zero. However, historical records indicate that the exercise was canceled after takeoff and no aircraft "actually participated." The Board finds, however, that the fact that the veteran and his unit did not "actually participate" in Operation Teapot is not material. Rather, his presence at the Test Site is sufficient under section 3.309 and the Board finds that the evidence is sufficient to establish his presence at the Nevada Test Site during Operation Teapot. Thus, the Board finds that the veteran's acute myelogenous leukemia must be presumed to have been incurred in service under 38 C.F.R. § 3.309(d). 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 (1999). As the Board has determined that service connection is warranted for acute myelogenous leukemia, and given the cause of his death as listed on his death certificate, it is clear that service connection for the cause of the veteran's death is warranted. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (1999). ORDER Service connection for the cause of the veteran's death is granted. J.F. GOUGH Member, Board of Veterans' Appeals