Hilkert v. West

12 Vet. App. 145, 1999 U.S. Vet. App. LEXIS 109, 1999 WL 39040

• Court: United States Court of Appeals for Veterans Claims
• Decided: February 1, 1999
• Docket: No. 96-208
• Status: Published

Opinions

HOLDAWAY, Judge, filed the opinion of the Court. STEINBERG, Judge, filed an opinion concurring in part and dissenting in part in which KRAMER, Judge, joined.

HOLDAWAY, Judge:

The appellant, Lois E. Hilkert, as the surviving spouse of the veteran, Franklin T. Hilkert, appeals a January 1996 decision of the Board of Veterans’ Appeals (BVA or Board) which denied her claim for dependency and indemnity compensation (DIC). The Board determined that the veteran’s death was not connected to his exposure to radiation during military service. The Court has jurisdiction under 38 U.S.C. §§ 7252(a).

The Court issued its opinion on July 16, 1998, vacating the Board’s decision and remanding the matter for further adjudication. See Hilkert v. West, 11 Vet.App. 284 (1998). On August 6, 1998, the Secretary filed a motion for en banc review which was opposed by the appellant. After considering these pleadings, the Court will grant the Secretary’s motion and withdraw the July 16, 1998 opinion. This opinion is issued in its stead. For the following reasons, the Court will affirm the decision of the Board.

I. FACTS

The veteran served on active duty in the U.S. Army from April 1945 to January 1948. His service medical records do not indicate treatment for any relevant condition. In 1984, the veteran was diagnosed with adeno-carcinoma of the rectosigmoid junction with lymph node and liver metastasis. In April 1985, he died as a result of complications arising from this condition.

In 1992, the appellant filed a claim for DIC, asserting that her husband’s death should be service connected because he was exposed to radiation in service and subsequently developed a condition related to radiation exposure. Following the applicable regulation, the VA regional office (VARO) sought a radiation dosage assessment from the Defense Nuclear Agency (DNA) to determine the amount of radiation to which the veteran was exposed during service. The DNA confirmed that the veteran was exposed to residual radiation from an atomic explosion for one day in November 1945 while in Nagasaki, Japan, before being deployed elsewhere. Referring to a publication prepared by the National Institute of Occupational Safety and Health entitled Radiation Dose Reconstruction: U.S. Occupation Forces in Hiroshima and Nagasaki, Japan, 194.5-4.6, the DNA reported that the maximum possible dose of residual radiation from the atomic blast anyone stationed in Nagasaki during the occupation could have received was less than 1 rem.

The VARO then forwarded the claim to the Director of Compensation and Pension for review. In order to accurately review the merits of the appellant’s claim, the Director of Compensation and Pension requested an advisory medical opinion from the Under Secretary for Health. Dr. Susan Mather performed the evaluation on behalf of the Under Secretary for Health. Dr. Mather evaluated the information provided and concluded that “it is highly unlikely that his disease can be attributed to exposure to ionizing radiation in service.” Dr. Mather based her conclusion on the fact that the veteran had received a maximum dose of less than 1 rem of radiation at age 18 and did not develop his condition until 35 years after exposure. Referring to a publication entitled “CIRRPC Scientific Panel Report No. 6, 1988,” and a report prepared by the National Research Council, Committee on Biological Effects of Ionizing Radiations, entitled Health Effects of Exposure to Low Levels of Ionizing Radiation, Dr. Mather noted that individuals exposed to low levels of radiation are not more likely to develop colon cancer than those who are not exposed. Rather, the risk of colon cancer increases only after exposure to “intense irradiation.”

After a review of this report, the Director of Compensation and Pension advised the VARO that there was no reasonable possibility that the veteran’s exposure to radiation in service caused his disease. On the basis of this information, the VARO denied the appellant’s claim for DIC. The appellant then appealed to the Board. The Board decided that the veteran’s condition was not caused by his exposure to radiation during service. While the Board noted that the veteran was exposed to radiation in service and subsequently developed a condition related to radiation exposure, it concluded, on the basis of Dr. Mather’s report, that it was highly unlikely that the veteran’s condition can be attributed to radiation exposure while in service. The appellant then filed a timely appeal to this Court.

II. ANALYSIS

A. Service Connection Under 38 C.F.R. § 3.311

DIC is paid to the surviving spouse, children, or parents of a qualifying veteran who dies from a service-connected disability. 38 U.S.C. § 1310. For such a death to be considered service connected, it must result from a disability incurred in the line of duty. 38 U.S.C. § 101(16).

In order to service connect a disability, a claimant has the initial burden of showing that a claim is well grounded. 38 U.S.C. § 5107(a); see Grottveit v. Brown, 5 Vet.App. 91, 92 (1993). For a claim to be well grounded, generally, there must be: (1) a medical diagnosis 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 in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

Congress recognized, however, that for veterans who were exposed to radiation during military service, this procedure was unduly burdensome because many veterans were having difficulties supporting their claims for compensation. See Wandel v. West, 11 Vet.App. 200 (1998). Pursuant to Congress’ mandate, VA established special procedures to follow for those veterans seeking compensation for diseases related to exposure to radiation in service. See Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, Pub.L. No. 98-542, 98 Stat. 2725 (1984); 38 C.F.R. § 3.311 (1998). This regulation provides that:

In all claims in which it is established that a radiogenic disease first became manifest after service ... and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. When dose estimates provided ... are reported as a range of doses to which a veteran may have been exposed, exposure at the highest level of the dose range reported will be presumed.

38 C.F.R. § 3.311(a)(1).

This regulation establishes a series of chronological obligations upon both parties. See Wandel, supra. First, the claimant must establish that the veteran suffers from a radiogenic disease. See 38 C.F.R. § 3.311(b)(2). This disease must manifest within a certain time period. See 38 C.F.R. § 3.311(b)(5). Once a claimant has established a diagnosis of a radiogenic disease within the specified period and claims that the disease is related to his radiation exposure while in service, VA must then obtain a dose assessment. 38 C.F.R. § 3.311(a)(1); see Wandel, supra. After it is determined by the dose assessment that the veteran was exposed to radiation, the VARO is then required to refer the case to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311(b); Ramey v. Gober, 120 F.3d 1239, 1244 (Fed.Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1171, 140 L.Ed.2d 181 (1998); Wandel, supra.

When the claim is referred, the Under Secretary for Benefits “shall consider the claim with reference to the factors specified in paragraph (e) of this section and may request an advisory opinion from the Under Secretary for Health.” 38 C.F.R. § 3.311(c)(1). Paragraph (e) of this section states:

(e) Factors for Consideration. Factors to be considered in determining whether a veteran’s disease resulted from exposure to ionizing radiation in service include:

(1) The probable dose, in terms of dose type, rate, and duration as a factor in inducing the disease, taking into account any known limitations in the dosimetry devices employed in its measurement or the methodologies employed in its estimation;

(2) The relative sensitivity of the involved tissue to induction, by ionizing radiation, of the specific pathology;

(3) The veteran’s gender and pertinent family history;

(4) The veteran’s age at time of exposure;

(5) The time-lapse between exposure and onset of the disease; and

(6) The extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to the development of the disease.

38 C.F.R. § 3.311(e).

After referring to these factors, the Under Secretary for Benefits must then determine the likelihood that the claimant’s exposure to radiation in service resulted in the current radiogenic disease. See 38 C.F.R. § 3.311(c)(1). This section provides two options:

(i) If after such consideration the Under Secretary for Benefits is convinced sound scientific and medical evidence supports the conclusion it is at least as likely as not the veteran’s disease resulted from exposure to radiation in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction in writing. The Under Secretary for Benefits shall set forth the rationale for this conclusion, including an evaluation of the claim under the applicable factors specified in paragraph (e) of this section.

(ii) If the Under Secretary for Benefits determines there is no reasonable possibility that the veteran’s disease resulted from radiation exposure in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction, in writing, setting forth the rationale for this conclusion.

38 C.F.R. § 3.311(e)(1). As the regulation states, the Under Secretary for Benefits must make this determination based on “sound scientific evidence.” See id. This regulation specifically defines “sound scientific evidence” as

observations, findings, or conclusions which are statistically and epidemiologically valid, are statistically significant, are capable of replication, and withstand peer review, and ... which are consistent with current medical knowledge and are so reasonable and logical as to serve as the basis of management of a medical condition.

38 C.F.R. § 3.311(c)(3). Since this determination relies heavily on medical and scientific findings and analysis, the Under Secretary for Benefits may request an advisory opinion from the Under Secretary for Health to assist in carrying out the obligation imposed by this regulation. See 38 C.F.R. § 3.311(c)(1) (authorizing the Under Secretary for Benefits to request an advisory opinion from the Under Secretary for Health).

In this case, the appellant submitted evidence to show that the veteran was diagnosed with a radiogenic disease and claimed that the veteran’s exposure to radiation while in military service caused this disease. Pursuant to the regulation, the VARO then requested a dose assessment from the Department of Defense, specifically the DNA. The DNA responded by confirming that the veteran was exposed to radiation for the one day he spent in Nagasaki but also stated that the maximum dose to which he could have been exposed was less than one rem. After receiving confirmation of exposure, the VARO properly referred the claim to the Director of Compensation and Pension for review who acted on behalf of the Under Secretary for Benefits. Due to the nature of the claim, the Director of Compensation and Pension requested an advisory opinion from the Under Secretary for Health. Dr. Susan Mather, writing the opinion for the Under Secretary for Health, concluded that “it is highly unlikely that [the veteran’s] disease can be attributed to exposure to ionizing radiation in service.” Dr. Mather based her conclusion on the fact that the veteran received no more than one rem of radiation at age 18 and did not develop his disease until approximately 35 years after exposure. Dr. Mather noted that individuals exposed to low levels of radiation, as the veteran in this case was, are not more likely to develop colon cancer than those who are not exposed. After receiving this report, the Director of Compensation and Pension advised the VARO in writing that there was no reasonable possibility that the veteran’s disease resulted from radiation exposure in service. The VARO and the Board then based their decisions on Dr. Mather’s opinion.

The appellant argues that the Board erred because the Director of Compensation and Pension did not specifically address all of the factors listed in 38 C.F.R. § 3.311(e). The appellant’s argument implies that the Under Secretary for Benefits erred in making his determination because in the absence of a specific listing of facts, he must have considered only the probable dose of radiation the appellant received in service rather than all of the factors provided. The appellant’s argument thus compels the Court to decide whether or not 38 C.F.R. § 3.311(c)(l)(ii) requires the Under Secretary for Benefits to specifically address each factor enumerated in 38 C.F.R. 3.311(e).

As noted above, 38 C.F.R. § 3.311(c)(1) requires the Under Secretary for Benefits to “consider the claim with reference to the factors specified in paragraph (e).” Reference is defined as “the directing of attention to a person or thing” and “an indication, as in a book or article, of some other work to be consulted.” Webster’s New World Dictionary 1127 (3d college ed.1986). Under the plain meaning of this section, the Under Secretary for Benefits is not required to discuss each of the factors listed, but rather to consult these factors as a point of reference in determining the recommendation to the VARO. Failure to discuss these factors is by no means a failure to consider these factors.

After he has reviewed the claim, the Under Secretary for Benefits must choose one of two possible recommendations. See 38 C.F.R. § 3.311(c)(1). The Under Secretary for Benefits may find that it is “as likely as not” that the veteran’s disease resulted from exposure to radiation in service, thereby recommending service connection. See 38 C.F.R. 3.311(c)(l)(i). On the other hand, the Under Secretary for Benefits may find that there is “no reasonably possibility” that the veteran’s disease resulted from radiation exposure in service. See 38 C.F.R. 3.311(e)(l)(ii). If the Under Secretary for Benefits finds that the claim has “no reasonable possibility,” he must inform the VARO of the decision in writing “setting forth the rationale for this conclusion.” 38 C.F.R. § 3.311(e)(l)(ii). This section does not mention the list of factors in paragraph (e) nor could it reasonably be construed to require a discussion of them.

The absence of a requirement that all of the factors be addressed cannot be interpreted as accidental. If the Secretary had intended the opinion of the Under Secretary for Benefits to include a discussion of all the factors listed in paragraph (e), there is other language in the same regulation which demonstrates that he knew how to achieve that end. For example, if after receiving the advisory opinion from the Under Secretary for Health, the Under Secretary for Benefits still cannot make the conclusion as ordered under 38 C.F.R. 3.311(c)(1), the matter must be referred to an outside consultant. 38 C.F.R. § 3.311(c)(2). Rather than stating that the outside consultant shall consider the claim with reference to the list of factors set forth, the regulation specifically provides that the consultant’s report must include a written evaluation of a list of six factors similar to the list of factors set forth in 38 C.F.R. § 3.311(e).

This regulation does not require or imply a need for all factors to be explicitly referred to in writing in order for the regulation to function logically. In some cases, it would be unnecessary to analyze all of the factors when the expert found that some of the factors were dispositive. In this ease, the combination of the probable dose received, the nature of the cancer involved, and the appellant’s age were sufficient, in Dr. Mather’s opinion, to rule out any possibility that the veteran’s disease was related to exposure to radiation in service. It appears from the language of Dr. Mather’s report that no other factors could have significantly impacted the probability that the appellant’s disease was caused by exposure to radiation in service. In other words, the cited factors were so conclusive that they essentially mooted the factors not expressed in writing. Therefore, the Court holds that a discussion by the Under Secretary for Benefits of all of the factors under paragraph (e) is not required if the Under Secretary for Benefits recommends that there is “no reasonable possibility that the veteran’s disease resulted from radiation exposure in service” as authorized under 38 C.F.R. § 3.311(c)(l)(ii).

B. Use of Treatises

When the Board relies upon evidence developed or obtained after the most recent Statement of the Case or Supplement Statement of the Case, the Board is required to give the claimant adequate notice of its intention to use such evidence. Thurber v. Brown, 5 Vet.App. 119, 122 (1993); see Kirwin v. Brown, 8 Vet.App. 148, 153 (1995). The purpose behind this rule is to ensure the fairness of the adjudicative process by providing notice to the claimant of all the pertinent laws and facts upon which the Board will make its determination and an opportunity to respond to such evidence. See Thurber, supra.

The evidence in question here is: (1) the dose reconstruction report prepared by the National Institute of Occupational Safety and Health, entitled Radiation Dose Reconstruction: U.S. Occupational Forces in Hiroshima and Nagasaki, Japan 194.5-4-6; (2) the CIRRPC Scientific Panel Report No. 6, 1988; and (3) a report prepared by the National Research Council, Committee on the Biological Effects of Ionizing Radiations, entitled Health Effects of Exposure to Low Levels of Ionizing Radiation. The appellant argues that the Board should have provided the appellant with copies of these publications so that she could respond to them.

In this case, Dr. Mather and the DNA, not the Board, relied upon these publications to reach their conclusions. Publications referred to or relied upon by.expert witnesses are not publications before the Board. See Bowey v. West, 11 Vet.App. 106, 109 (1998). The Board did not use or rely upon these publications; rather, the Board based its decision on the opinions of Dr. Mather and the DNA. The appellant had notice of Dr. Mather’s opinion and the DNA’s report prior to adjudication at the VARO level and prior to adjudication at the Board. The appellant had the opportunity to contest the validity of these opinions or could have provided her own evidence in support of her claim. The Board, therefore, did not err with respect to this issue.

C. Duty to Assist

Once a claimant has submitted a well-grounded claim, the Secretary is required to assist that claimant in developing the facts pertinent to that claim. 38 U.S.C. § 5107. The appellant contends that the Secretary and the Board violated this duty by failing to provide evidence on radiogenic diseases available to support her claim.

Even assuming the appellant’s claim is well grounded and thus triggered the duty to assist, the Secretary did not violate his duty. The duty to assist is not unlimited. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The Secretary’s duty to assist does not encompass “a duty to prove a claim with the claimant only in a passive role.” See Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992). The Secretary fulfilled his obligations under 38 C.F.R. § 3.311. Furthermore, the appellant did not request copies of these documents before the Board. The appellant has not shown that the documents requested would support her claim. The Board does not have a duty to sua sponte provide these documents. Thus, the Board did not err in failing to provide the material the appellant claims will support her claim.

D. Competence of Expert Witness

Finally, the appellant asserts that the Board failed to qualify Dr. Mather as an expert witness. The record indicates that the appellant did not present this issue to the Board for review. A challenge to Dr. Mather’s qualifications was not incorporated into the Notice of Disagreement, the Statement of the Case, or the substantive appeal. See 38 U.S.C. § 7105(d); cf. Grantham v. Brown, 114 F.3d 1156, 1159-60 (Fed.Cir.1997) (Archer, C.J., concurring). In her appeal to this Court, the appellant does not contend that Dr. Mather was incompetent but rather argues that the Board erred by failing to establish competency. However, the Board implicitly accepted Dr. Mather’s competency by accepting and relying upon the conclusions in her opinion. An appellant bears the burden of persuasion on appeals to this Court to show that such reliance was in error. See Berger v. Brown, 10 Vet.App. 166, 169 (1997). There is simply nothing in the record that would cast doubt on Dr. Mather’s competency. Cf. Hill v. Brown, 9 Vet.App. 246 (1996); Ashley v. Derwinski, 2 Vet.App. 307 (1992) (presumption of regularity attaches to actions of public officials). Therefore, the appellant' has failed in her burden of demonstrating error in the Board’s decision.

III. CONCLUSION

After consideration of the pleadings and a review of the record, the Court holds that the appellant has not demonstrated that the BVA committed either legal or factual error which would warrant reversal or remand.

The decision of the Board is AFFIRMED.