Citation Nr: 0001358 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 97-02 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE 1. Entitlement to service connection for the cause of the veteran's death, as secondary to radiation exposure. 2. Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999). ATTORNEY FOR THE BOARD D. Odlum, Associate Counsel INTRODUCTION The veteran had active military service from July 1945 to August 1948 and from September 1950 to November 1951. The death certificate shows that the veteran died in December 1958 at the age of 31. This matter is before the Board of Veterans' Appeals (Board) on appeal from a April 1996 rating decision from the Albuquerque, New Mexico, Department of Veterans Affairs (VA) Regional Office (RO). In February 1998, the Board remanded the issue of service connection for the cause of the veteran's death for additional development. The case has since been returned to the Board for further appellate review. The Board notes that the appellant had previously submitted a claim of service connection for the cause of the veteran's death in January 1959, and that this was denied by the RO in 1959. In particular, it was found that chronic myelogenous leukemia, which contributed to the veteran's death from a brain hemorrhage, was not related to his period of active service. This decision was not appealed and it became final. In January 1994, the appellant submitted a claim for service connection of the cause of the veteran's death, specifically contending, in pertinent part, that the cause of death was secondary to in-service radiation exposure. At the time of the 1959 rating decision, entitlement to service connection, either direct or presumptive, based on exposure to radiation, was not available. See 38 C.F.R. §§ 3.307 and 3.309 (1959). Since the 1959 rating decision, the pertinent regulations have undergone multiple substantive changes, leading to the current regulations which allow for service connection on a direct or presumptive basis due to radiation exposure. See 38 C.F.R. §§ 3.309(d) and 3.311 (1999). When a provision of law or regulation creates a new basis of entitlement to benefits, as through liberalization of the requirements for entitlement to a benefit, an applicant's claim of entitlement under such law or regulation is a claim separate and distinct from a claim previously and finally denied prior to the liberalizing law or regulation. Therefore, the applicant's later claim, asserting rights which did not exist at the time of the prior claim, is necessarily a different claim. Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994); Sawyer v. Derwinski, 1 Vet. App. 130, 133 (1991); see also Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). Thus, the appellant's current claim of service connection for the cause of the veteran's death shall be treated as a claim separate and distinct from the claim filed in January 1959 and denied in February 1959; the issue of new and material evidence has no bearing on this particular case. The Board also notes that the appellant has contended that the cause of the veteran's death was the result of radiation testing administered by VA hospitals. The RO has adjudicated this issue, including it as a part of the issue of service connection for the cause of the veteran's death as a result of exposure to radiation. The RO has provided the appellant with the relevant law pertaining to the issue of entitlement to DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1151 in the Statement of the Case. The appellant has perfected her appeal with regard to this issue and there is no indication from the record that this appeal has been withdrawn. Thus, the Board concludes that both the issues of service connection for the cause of death and entitlement to DIC benefits under section 1151 are before the Board. For the sake of clarity, the Board has separated the two issues and will adjudicate them as such. In July 1997 the RO notified the appellant that it was terminating her death pension benefits. In January 1998, and in subsequent statements, the appellant contended that she should be entitled to "widow's pension." The Board finds that this is an inferred claim for nonservice-connected death pension benefits. As this issue has been neither procedurally developed nor certified for appellate review, the Board is referring it to the RO for initial consideration and appropriate action. Godfrey v. Brown, 7 Vet. App. 398 (1995). The issue of entitlement to service connection for the cause of the veteran's death is addressed in the remand portion of this decision. FINDING OF FACT The claim of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151 is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151 is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The pertinent evidence of record shows that the veteran was seen for a VA examination in January 1949. Examination revealed a subcutaneous lump in the right pectoral region. The lump was excised and biopsied, and it was found to be non-malignant. In April 1954, the veteran was seen at a VA facility with complaints of weakness, dizziness, and weight loss. Blood tests and a bone marrow study were performed, and the diagnosis was chronic myelogenous leukemia. From February 1957 to April 1957, the veteran was hospitalized at the VA Hospital (VAH) in Coral Gables, Florida. It was noted that he had been placed on myeleran, five tablets per day, and then two tablets per day, until August 1956, when his local physician discontinued it. It was noted that he had first been admitted to the VAH following a motor vehicle accident in November 1956, at which time he was started on 6-chloropurine 1 gram per day for his leukemia. This was subsequently discontinued, and he was placed on 4 milligrams (mg) of myeleran for one week. On admission, the veteran's diagnosis of chronic granulocytic leukemia was substantiated by a bone marrow study. Chest x- rays were within normal limits, and laboratory studies were conducted. He was given his first dose of radioactive P-32, after which it was noted that his white cell count had dropped to 5,000 cells. He was to return in one week to check his white count and receive further P-32 therapy when the white count rose. The veteran was admitted to the VAH in New York, New York for leukemia with progressive fatigue, memory loss, and vertigo. He reported receiving a P-32 injection every three weeks at the VAH in Coral Gables and that he felt better each time. It was noted that he had been referred to the New York VAH for further P-32 therapy; he was admitted for consideration of further chemotherapy. Laboratory studies were performed, including a bone marrow aspiration which revealed a hypercellular bone marrow with an "ME" ratio of 11:1. This was found to be consistent with chronic myelogenous leukemia. It was noted that no complications resulted from the bone marrow aspiration. It was concluded that antileukemia therapy was not indicated at this time. In July 1958, the veteran was admitted to the VAH in Brooklyn, New York with enlargement of the spleen and lymph nodes. A physical examination was conducted, and laboratory studies were performed. On admission, the veteran was considered to be in an acute exacerbation of his leukemia. On August 1, 1958, his white blood count was well over 100,000, and 6 chloropurine, one gram per day, was started. There was a marked response to this drug with his white blood count falling to 2,200, at which point the chloropurine was discontinued. His white blood count rose and his spleen enlarged upon discontinuance of this therapy; therefore, he was started on 0.5 grams of chloropurine per day. The veteran's spleen continued to enlarge on this therapy and the white blood count continued to rise. Chloropurine was increased to one gram per day, and, on this dosage, his white blood count dropped to below normal levels. He was discharged on chloropurine, 0.75 grams, and was to return to the hematology clinic in one week. In December 1958 the veteran was re-admitted to the VAH in Brooklyn for symptoms of his leukemia. During admission, several nosebleeds were noted. The veteran became more toxic with his spleen progressively enlarging. He began to have a convulsion, Cheyne-Stokes respirations became cyanotic, and he subsequently was pronounced dead. The final diagnosis was chronic myelogenous leukemia with an acute exacerbation, and a cerebral hemorrhage secondary to the leukemia. The veteran's certificate of death indicates that the principal cause of death was a cerebral hemorrhage, and that the contributory cause was chronic myelogenous leukemia. In February 1994, the appellant submitted a letter claiming, in pertinent part, that radiation testing conducted in VA hospitals was a contributing factor in the cause of the veteran's death. She re-asserted this contention in October 1994, and again in March and May of 1996. In April 1995, the Medical Center Director from the VA Medical Center (VAMC) in Brooklyn, New York wrote to the appellant that the Brooklyn VAMC had never been involved in any radiation/radioactive research on human subjects. In November 1995, the appellant reported remembering the pain and suffering the veteran experienced each time he came home after taking injections at the VAH. Criteria Initially, the Board notes that during the pendency of this appeal pertinent laws and regulations related to claims filed pursuant to 38 U.S.C.A. § 1151 were revised. Formerly, 38 U.S.C.A. § 1151 provided that "[w]here any veteran suffers an injury, or an aggravation of an injury, as a result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation...awarded under any of the laws administered by the Secretary, or as the result of having submitted to an examination under any such law, and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation...shall be awarded in the same manner as if such disability, aggravation or death were service-connected." 38 U.S.C.A. § 1151 (West 1991). In 1991, the United States Court of Appeals for Veterans Claims (Court) invalidated 38 C.F.R. § 3.358(c)(3), a portion of the regulation utilized in deciding claims under 38 U.S.C.A. § 1151. Gardner v. Derwinski, 1 Vet. App. 584 (1991), aff'd, Gardner v. Brown, 5 F.3rd 1456 (Fed. Cir. 1993), aff'd, Brown v. Gardner, 513 U.S. 115, 115 S. Ct. 552 (1994). The United States Supreme Court (Supreme Court) in affirming the Court's decision held that the statutory language of 38 U.S.C.A. § 1151 simply required a causal connection between VA hospitalization and additional disability, and that there need be no identification of "fault" on the part of VA. Brown, supra. The provisions of 38 C.F.R. § 3.358(c)(3) (1994), formerly required that in order for compensation to be payable under § 1151, there must be a showing that the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instances of indicated fault on the part of VA. In March 1995, VA published amended regulations to conform to the Supreme Court decision. The revised provisions of 38 C.F.R. § 3.358 state that where it is determined that there is additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization or medical treatment, compensation will be payable for such additional disability. 38 C.F.R. § 3.358. In particular, the amended regulation, 38 C.F.R. § 3.358(c) (3), now provides: Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. 'Necessary consequences' are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered. Subsequently, the provisions of 38 U.S.C.A. § 1151 were amended, effective October 1, 1997, to include the requirement of fault, requiring that additional disability be the result of carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA in furnishing care, or an event not reasonably foreseeable. See 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999). However, in a precedent opinion, the VA Office of General Counsel held that all claims for benefits under 38 U.S.C.A. § 1151, filed before October 1, 1997, must be adjudicated under the code provisions as they existed prior to that date. See VAOPGCPREC 40-97. The Court has held that, for a service connection claim to be well grounded, there must be medical evidence of current disability, lay or medical evidence of incurrence or aggravation of a disease or injury in service, and medical evidence of a nexus (i.e., a link or a connection) between the injury or disease in service and the current disability. See Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Similarly, a claim for 38 U.S.C.A. § 1151 benefits must be supported by medical evidence of a current disability and medical evidence that the current disability resulted from VA hospitalization, medical examination, or treatment. Although claims for 38 U.S.C.A. § 1151 benefits are not based upon actual service connection, there are similarities in their adjudication, including the requirement for a well-grounded claim. See Boeck v. Brown, 6 Vet. App. 14, 16-17 (1993) (holding that a veteran must submit evidence sufficient to well ground a claim for benefits under 38 U.S.C.A. § 1151); Contreras v. Brown, 5 Vet. App. 492, 495 (1993). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Lay assertions of medical causation cannot constitute evidence to render a claim well-grounded; if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Derwinski, 5 Vet. App. 91, 93 (1993); see Contreras, supra. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 appellant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis The Board initially notes that, in this case, the provisions of 38 U.S.C.A. § 1151, in effect prior to October 1, 1997, are more favorable to the claim, inasmuch as negligence need not be established in order for the appellant to prevail. Regardless, inasmuch as the original claim brought under the provisions of 38 U.S.C.A. § 1151 was filed more than three years before October 1997 (February 1994), the provisions of 38 U.S.C.A. § 1151 in effect from October 1, 1997 forward are inapplicable to the claim. See VAOPGCPREC 40-97. The Board also notes that the appellant has not been provided with the provisions under the amended section 1151. Nonetheless, as the recent amendments to 38 U.S.C.A. § 1151 are not applicable in this case, the Board finds that additional due process development is not warranted and that a decision in this appeal may be provided without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finally notes that evidence has been submitted subsequent to the RO's most recent adjudication of the issue of DIC benefits under section 1151; however, such evidence did not pertain to VA hospitalization or treatment, or to the issue of entitlement under section 1151 in general. Therefore, such evidence is not relevant to the issue of entitlement to DIC benefits under section 1151, and due process development is not required. See 38 C.F.R. §§ 19.37 and 20.1304(c) (1999). As to the claim for compensation benefits for the cause of the veteran's death pursuant to the criteria under 38 U.S.C.A. § 1151, the Board notes that under the law, in the context of this issue on appeal, where it is determined that there is death resulting from VA treatment, DIC will be payable in the same manner as if such death were service- connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.358. Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant 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). Because the appellant has failed to meet this burden, the Board finds that her claim of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151 must be denied as not well grounded. The record shows that the veteran died in December 1958 at a VAMC. The principal cause of death was a cerebral hemorrhage, and the contributory cause was chronic myelogenous leukemia. In the instant case and for the reasons set forth below, the Board finds that the claim is not well grounded because there is no medical evidence establishing that the cause of the veteran's death was due to VA hospitalization, examinations, medical, or surgical treatment, including radiation treatment. The contentions raised in the context of this appeal are not supported by the evidence of record, nor has any competent medical evidence in support of these contentions been offered. The appellant contends that radiation testing performed on the veteran contributed to the cause of the veteran's death. 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). Neither is the Board competent to supplement the record with its own unsubstantiated medical conclusions as to whether the veteran's cause of death is related to VA hospitalization, medical or surgical treatment, or examinations. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In the instant case, the issue of whether the VA hospitalization, medical or surgical treatment, or examinations contributed to the cause of the veteran's death requires competent medical evidence. In absence of competent medical evidence linking the cause of the veteran's death to VA hospitalization, medical or surgical treatment, or examinations, the Board must deny the appellant's claim as not well grounded. 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. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). The Board finds that the RO was not under a duty to assist the appellant in developing facts pertinent to her claim for service connection for the cause of the veteran's death prior to the submission of a well grounded claim. Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997). As the appellant's claim for entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151 is not well grounded, the doctrine of reasonable doubt is not applicable to her case. ORDER The appellant, not having submitted a well grounded claim of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151, the appeal is denied. REMAND The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. The Board notes that 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). There are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans. 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 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). As noted above, leukemia is one of the diseases listed in paragraph (d)(2); however, the RO found that the veteran did not meet the criteria of a "radiation-exposed" veteran in light of Defense Special Weapons Agency (DSWA) (currently the Defense Threat Reduction Agency) July 1998 findings, concluding that the veteran was not with the American occupation in Hiroshima or Nagasaki. As to the second method, an appellant is not required to submit a traditional well-grounded claim under 38 C.F.R. 3.311. Instead, VA has established special procedures to follow for those veterans seeking compensation for diseases related to exposure to radiation in service. See Hilkert v. West, 11 Vet. App. 200 (1998); Wandel v. West, 11 Vet. App. 200 (1998); see also Johnson v. West, U.S. Vet. App. No. 97-1562 (May 26, 1999) (non-precedential opinion). Section 3.311 essentially states that a dose assessment will be made 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. 38 C.F.R. § 3.311(a) (1999); see also Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2) (1999). Under the present circumstances, the record shows that the cause of death is a "radiogenic disease," and it appears that the disease became manifest within the applicable time period. See 38 C.F.R. § 3.311(b)(2)(i), (b)(5). The record also reflects that the appellant has contended that the cause of the veteran's death is related to exposure to ionizing radiation. More specifically, the appellant has asserted that the veteran was likely exposed to fallout from the bombs detonated in Hiroshima and Nagasaki. In such cases, the regulation requires that a dose assessment be made as to the size and nature of the dose. 38 C.F.R. § 3.311(a). The record shows that DSWA rendered an opinion as to whether the veteran participated in the American occupation of Hiroshima and Nagasaki, Japan for the purposes of 38 C.F.R. § 3.309(d); however, the Agency did not provide any information as to the size and nature of the veteran's dose, if any. Under the circumstances, the Board finds that a dose assessment must be made and further development undertaken pursuant to 38 C.F.R. § 3.311, should the dose assessment reveal a positive value. In light of the above, and to ensure full compliance with due process requirements under 38 C.F.R. § 3.311, the appellant's claim is remanded to the RO for the following development: 1. The RO should request the appellant to provide any additional information referable to the veteran's service in Japan, particularly in terms of where he was located while stationed in Japan. The Board notes that the July 1998 letter from DSWA placed the veteran in Yokohama and Tachikawa; however, it was not found that he performed official military duties within 10 miles of the city limits of Hiroshima or Nagasaki. See 38 C.F.R. § 3.309(d)(3)(vi). 2. The RO, as provided in 38 C.F.R. § 3.311(a)(2), should request dose information from the Department of Defense. In this regard, the RO should contact the Defense Threat Reduction Agency (DTRA) to ascertain whether it can provide a dose estimate for the veteran while he was stationed in Japan. The RO should provide DTRA with additional information, including copies of available service records and information submitted by the appellant, if any, regarding his activities in Japan. The RO should take any appropriate action suggested by the DTRA in the event that it cannot provide a dose estimate for the veteran. 3. If it is determined that the veteran was exposed to ionizing radiation, as claimed, the issue should be referred to the Under Secretary for Benefits under 38 C.F.R. § 3.311(c) as provided by § 3.311(b)(1). See Wandel v. West, 11 Vet. App. 200, 205 (1998) (holding that absent competent evidence of radiation exposure, VA is not required to forward a claim to the Under Secretary for Benefits). 4. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed, and if it has not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 5. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for the cause of the veteran's death, as secondary to ionizing radiation exposure. If the benefit requested on appeal is not granted to the appellant's satisfaction, the RO should issue a supplemental statement of the case containing all applicable criteria pertinent to the appellant's claim. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until she is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals