Citation Nr: 0002188 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 95-12 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona 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 M. Taylor, Associate Counsel INTRODUCTION The veteran had active service from March 1944 to November 1949. He died November [redacted], 1993; the appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 1994 determination from the Phoenix, Arizona, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for the cause of the veteran's death. The veteran filed an application for service connection for chronic lymphocytic leukemia in July 1991. The RO, in an unappealed rating decision dated in February 1992, denied the claim. The veteran was notified of that denial in a letter dated later that same month. The veteran failed to file a Notice of Disagreement within one year and that rating decision became final. 38 C.F.R. § 20.302(a) (1999). The veteran filed a claim to reopen service connection for chronic lymphocytic leukemia in October 1993. This issue remained pending on the veteran's death in November 1993. The appellant filed her application for VA benefits in January 1994, which is within one-year following the veteran's death. VA statutes and regulations provide that a claim for DIC will also be considered to be a claim for death pension and accrued benefits and a claim for death pension will be considered to be a claim for DIC and accrued benefits. 38 U.S.C.A. § 5101(b)(1) (West 1991); 38 C.F.R. § 3.152(b)(1) (1999); Satchel v. Derwinski, 1 Vet. App. 258, 259-260 (1991). Therefore, the issue of entitlement to accrued benefits is referred to the RO for further action. FINDINGS OF FACT 1. The veteran died November [redacted], 1993, at which time he had no adjudicated, service-connected disabilities. The death certificate indicates the immediate cause of death was myocardial infarction due to or as a consequence of hypovolemic shock. 2. There is no competent evidence of lymphocytic leukemia, hypovolemic shock, or any cardiovascular system disorder he until many years after service and the appellant has not presented or identified competent evidence of a nexus between the cause of the veteran's death and his military service, including radiation exposure from nuclear testing. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim of entitlement to service connection for the cause of the veteran's death. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran's service medical records do not include a diagnosis of lymphocytic leukemia or any cardiovascular system disorder. In May 1947 it was noted that he had been attached to Operation Crossroads for three months and the results of a complete blood count were noted. It was not stated that they were abnormal. The veteran's separation medical examination in October 1949 showed no significant abnormalities of any body system. Defects are listed as none. The evidence does not show a diagnosis of lymphocytic leukemia during the veteran's initial post-service year. A VA medical record of October 1985 notes that the veteran had undergone various blood studies in April 1985 after complaining of abdominal pain. It was noted that on July 1, 1946 his ship had been six to seven miles from the site of atomic explosions and that on July 20, 1946 the veteran had stood on the deck to watch an explosion. The ship reportedly moved to ground zero for three days and helped another ship pump water from its engine room. Following a biopsy the final pertinent diagnosis was chronic lymphocytic leukemia. The post-service medical evidence shows that veteran was admitted to a VA hospital in August 1991 because of chest pain, nausea, vomiting and diaphoresis with syncope. The veteran was diagnosed with unstable angina and coronary artery disease, history of deep venous thrombosis in July 1991, gastrointestinal bleed in July 1991, history of chronic lymphocytic leukemia, and hemolytic anemia. The medical evidence further shows that between 1985 and 1991 the veteran was also diagnosed with and or treated for discoid atelectasis of both lower lobes and pneumonia. The records contain no medical opinions relating any of the conditions, including lymphocytic leukemia, to active service. A VA hospital record reflects that the veteran was admitted to the VA Medical Center in Phoenix, Arizona on September 23, 1993. The report indicates that he had recently undergone a ventral hernia repair at the VA facility followed by a fever that resolved and he was discharged. He then had prolonged fevers for which he was readmitted. He also was noted to have a small deep venous thrombosis. It was further noted that his white count had continued to climb and his hematocrit and hemoglobin had dwindled. A splenectomy was suggested and performed on October 8. Post-operatively he was noted to have a small pancreatic leak and amylase fluid in his drain. Following treatment for same he was discharged, apparently on or about October 20. At that time, in addition to chronic lymphocytic leukemia, the veteran had also been diagnosed with anemia secondary to #1 reactive autoagglutinin, autoimmune thrombocytopenia, status post splenectomy and a urinary tract infection. There is a notation on the hospital record that he died on November [redacted], 1993. According to the death certificate the veteran died while hospitalized. The cause of death was listed as myocardial infarction as a consequence of hypovolemic shock. No other underlying or significant conditions contributing to death were listed. An autopsy was not performed. Criteria A claim for service connection for the cause of death is treated as a new claim, regardless of the status of adjudication of service-connected-disability claims brought by the veteran before his death; therefore, the claim must be well grounded. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 20.1106 (1999). The Court has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has articulated the requirements for a well grounded claim for service connection as follows: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and, (3) medical evidence of a nexus between the claimed in-service injury or disease and a current disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In cases of service connection for the cause of death of the veteran, the first requirement of a current disability will always have been met, the current disability being the condition that caused the veteran to die; however, the last two requirements for a well-grounded claim must be supported by the record. Carbino v. Gober, 10 Vet. App. 507, 509 (1997). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Continuous service for 90 days or more during a period of war, and post-service development of a presumptive disease, such as cardiovascular renal disease, leukemia, or primary anemia, to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may also be granted for a 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). Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter, and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 489 (1997); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (where the issue involves questions of medical diagnosis or an opinion as to medical causation, competent medical evidence is required). To establish service connection for the cause of the veteran's death, the evidence must show that the service- connected disability was either the principal or contributory cause of death. A service-connected disability must be shown to either have caused or contributed substantially or materially to cause death. 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. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is insufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. 3.312(c). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (1999). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Special Criteria Pertaining to Ionizing Radiation Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans. 38 U.S.C.A. § 1112(c) (West 1991 & Supp. 1999); 38 C.F.R. § 3.309(d) (1999). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311 (1999). Third, service connection may be granted under 38 C.F.R. § 3.303(d) (1999) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). With respect to the first method, the Board notes section 3.309(d)(1) provides that the diseases listed in paragraph (d)(2) of this section shall be service-connected if they become manifest in a radiation-exposed veteran. The provisions of section 3.309(d) limit the diseases subject to presumptive service connection to those specified in section 3.309(d)(2): They 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). As to the second method, the provisions of 38 C.F.R. § 3.311 provide for development of claims based on a contention of radiation exposure during active service and post-service development of a radiogenic disease. The regulation provides a list of recognized radiogenic diseases in subsection 3.311(b)(2), and the regulatory time period when the diseases must become manifest. 38 C.F.R. § 3.311(b)(5). Under this section "radiogenic disease" includes the following: 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; prostate cancer; and any other cancer. 38 C.F.R. § 3.311(b)(2). The provisions do not give rise to a presumption of service connection, but rather establish a procedure for handling claims brought by radiation exposed veterans or their survivors. See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). In addition, subsection 3.311(b)(4) provides that, even if the claimed disease is not one that is already recognized as radiogenic under subsection 3.311(b)(2), the claim will still be considered, or developed, pursuant to 38 C.F.R. § 3.311 if the veteran cites or submits competent scientific or medical evidence that the claimed disease is radiogenic. Section 3.311 essentially states that, in all claims in which it is established that a radiogenic disease first became manifest after service, and it is contended that the disease resulted from radiation exposure, a dose assessment will be made. Analysis Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the appellant to produce evidence that her claim is well grounded; that is, that her claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). The appellant has submitted numerous statements expressing her contentions which, in essence, are that the veteran was exposed to extensive ionizing radiation as a crew member of the USS Bayfield which was in the area of atomic testing (Operation Crossroads) during July 1946; that the exposure to radiation caused the veteran's leukemia; that the leukemia caused or was a significant factor in the veteran's death; and that the denial of her claim was not based on the facts or the veteran's record of radiation exposure. At the outset, the appellant is advised that regardless of her belief that the veteran's terminal illness and death were the result of radiation exposure in service, she is not shown to have the medical or scientific qualifications to express a competent opinion in that regard. The issue of whether the cause of the veteran's death is related to active service in general requires competent medical evidence. In this case, the only evidence that provides a nexus to service consists of statements and from the appellant and the veteran. However, the appellant is not, nor was the veteran, a medical professional or expert in the effects of radiation so their statements do not constitute competent medical evidence. The Board notes that, generally speaking, lay persons are not competent to offer evidence that requires medical knowledge. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration). The available service medical records do not include a diagnosis of lymphocytic leukemia or any other relevant disorder. However they do refer to the veteran having been attached to Operation Crossroads for three moths. The October 1949 separation medical examination report shows that the veteran had no significant abnormalities and no defects were noted. Further, the medical evidence does not show that during any applicable presumptive period the veteran had lymphocytic leukemia or any other disorder from which he suffered during his lifetime. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In fact, while the appellant claims the veteran's cause of death was chronic lymphocytic leukemia, the death certificate reports that the immediate cause of death was myocardial infarction due to or as a consequence of hypovolemic shock and it does not mention leukemia. In any event, the appellant does not allege that the veteran had been diagnosed with leukemia prior to 1985 and since there is no evidence that the veteran suffered from leukemia or any other relevant disease until many years after service, a link to service, including to any radiation exposure, can not be created solely by appellant's opinion. While the post-service medical evidence shows hospitalization and treatment for multiple physical disabilities, including cardiovascular and pulmonary problems as well as chronic lymphocytic leukemia since 1985, these records contain no medical opinions relating these conditions to active service. An October 1985 VA hospital record does refect that the veteran gave an in-service history of having been in the area of atomic explosions and having moved to ground zero; however, that history was unenhanced by any medical comment and does not constitute medical evidence of a relationship between leukemia and any incidents of the veteran's service. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Assuming for the sake of argument that leukemia was a factor in the veteran's death, chronic lymphocytic leukemia is specifically excluded as a disease specific to radiation exposed veterans under 38 C.F.R. § 3.311(a) and as a radiogenic disease under 38 C.F.R. § 3.309(d). Thus, regardless of how much radiation to which the veteran may have been exposed during service, applicable regulations do not afford a basis for relating such to service in the absence of competent scientific or medical evidence that chronic lymphocytic leukemia is a radiogenic disease. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). No such evidence has been identified or submitted. Inasmuch as the veteran's death was not due to a radiogenic disease listed in section 3.311(b)(2) (and chronic lymphocytic leukemia is not a listed radiogenic disease), a request for dose information is not warranted by regulation. The Board also notes that VA was not under a duty to refer the claim to the Under Secretary for Benefits prior to establishment of the initial threshold requirement of a radiogenic disease. Wandel v. West, 11 Vet. App. 200, 205 (1998). For these reasons, the Board finds that the appellant has not presented or identified competent medical evidence of a link between the veteran's lymphocytic leukemia and in-service radiation exposure or any other incident or event of service. Consequently, the Board concludes that the appellant's claim of entitlement to service connection for the cause of death is not well grounded. 38 U.S.C.A. § 5107(a). The Board notes the lengthy handwritten statement by the appellant in which she related her recollection of events of the veteran's illness and his medical treatment. She also made statements as to the causes and effects of anemia, suggesting that the veteran had aplastic anemia caused by radiation exposure and that the veteran essentially bled to death as a result of aplastic anemia. Such statements may reflect conclusions reached by the appellant based on her own research; however, she has neither submitted nor identified any medical literature or other competent evidence that would make her claim well grounded. To the extent that she has referenced conversations with medical professionals, she has not identified any conversation which, if stated directly by the individual, would link the veteran's death to service, including radiation exposure. The Board concludes that the appellant has not submitted evidence of a well-grounded claim of entitlement to service connection for the cause of the veteran's death. 38 U.S.C.A. § 5107 (West 1991). The Board further finds that the RO has advised the appellant of the evidence necessary to establish a well-grounded claim, and the appellant has not indicated the existence of any evidence that has not already been obtained that would well ground her claim. 38 U.S.C.A. § 5103(a) (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, , 126 F.3d 1464 (Fed. Cir. 1997). To make her claim well grounded, she would have to submit a medical opinion or other medical or scientific evidence supporting her claim. The representative's contention that VA has expanded its duty to assist is without merit. In Meyer v. Brown, 9 Vet. App. 425 (1996), the Court held that the Board is not required to remand a claim for additional development, in accordance with 38 C.F.R. § 19.9 (1999) prior to determining that a claim is not well-grounded. In addition, it was more recently held that under 38 U.S.C.A. § 5107(a), VA has a duty to assist only those appellants who have established well- grounded claims. Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997). As the appellant's claim for service connection for lymphocytic leukemia as resulting from exposure to Agent Orange is not well grounded, the doctrine of reasonable doubt has no application. ORDER The appellant's claim for service connection for the cause of the veteran's death is denied. JANE E. SHARP Member, Board of Veterans' Appeals