James L. Parrish v. Eric K. Shinseki

24 Vet. App. 391, 2011 U.S. Vet. App. LEXIS 843, 2011 WL 1518666
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 22, 2011
Docket09-0757
StatusPublished
Cited by5 cases

This text of 24 Vet. App. 391 (James L. Parrish v. Eric K. Shinseki) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James L. Parrish v. Eric K. Shinseki, 24 Vet. App. 391, 2011 U.S. Vet. App. LEXIS 843, 2011 WL 1518666 (Cal. 2011).

Opinions

KASOLD, Chief Judge:

Veteran James L. Parrish appeals through counsel that part of a February 9, 2009, decision of the Board of Veterans’ Appeals (Board) that denied disability compensation for chronic obstructive pulmonary disease (COPD) and pulmonary fibrosis,1 both claimed to be a result of in-service radiation exposure, because the disabilities are not service connected. Mr. Parrish’s initial argument to the Court focused on the adequacy of the Board’s statement of reasons or bases for its decision with regard to its reliance on the procedure employed and decisions obtained by the Secretary in accordance with 38 C.F.R. § 3.311(c), a regulation pertaining to the Secretary’s radiation exposure claim adjudication process. On November 16, 2010, the Court affirmed the Board’s decision.

Mr. Parrish timely sought reconsideration, specifically contending that 38 C.F.R. § 3.100 does not permit the Under Secretary for Benefits (USB) to delegate obligations that expressly are placed upon him by § 3.311(c). Although this specific argument was not raised in his initial brief, it is sufficiently related to his initial argument to grant reconsideration, and the November 16 decision was withdrawn. Because this specific issue has not previously been decided by the Court, it was referred for decision by a panel of the Court. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).

For the reasons set forth below, the Court holds that (1) the express designation of responsibility to the USB stated in § 3.311(c) does not limit the USB’s authority under § 3.100 to designate the Compensation and Pension (C & P) Service Director (C & P Director) to render the opinion required by § 3.311(c), and (2) Mr. Parrish otherwise fails to demonstrate error in the Board’s decision. Therefore, the Board’s decision will be affirmed.

I. FACTS

Mr. Parrish served on active duty from January 1957 to December 1959. In August 1999, he submitted a disability compensation claim for, inter alia, COPD and pulmonary fibrosis from exposure to in-service radiation. With his claim, Mr. Parrish submitted an August 1999 letter from his private physician who opined that his conditions “certainly could have been [393]*393caused by his exposure to radiation.” Record (R.) at 504. Responding to a request from the St. Petersburg, Florida, regional office (RO), the Defense Threat Reduction Agency (DTRA) confirmed that Mr. Parrish was present at Operation PLUMB-BOB, a U.S. atmospheric nuclear test series conducted in Nevada in 1957, but that he had not been exposed to measurable radiation. The RO denied the claim in a November 2001 rating decision.

In July 2002, Mr. Parrish submitted a Notice of Disagreement and an article discussing possible health problems of veterans who participated in nuclear weapons testing. The RO continued its denial of the claim in a January 2004 Statement of the Case. With his appeal to the Board, Mr. Parrish submitted another letter from his private physician dated February 23, 2004. The matter was forwarded to the RO for more development and an additional dose estimate from DTRA was obtained. According to a November 2007 letter from DTRA, DTRA began a new policy to provide worst-case radiation dose estimates to give the maximum benefit of the doubt to veterans and to ensure that reported doses are not less than actual doses. Although Mr. Parrish originally was found to have nonmeasurable exposure to radiation, under the new policy, DTRA estimated that Mr. Parrish could not have been exposed to more than 16 rem external gamma dose, 1 rem external neutron dose, 1 rem internal committed dose to his lung (alpha), and 3 rem internal committed dose to his lung (beta + gamma).

In December 2007, the RO requested from the C & P Service a decision regarding the issue of service connection for COPD and pulmonary fibrosis secondary to ionizing radiation exposure. The request included “information as required by the manual,” to wit: (a) Pertinent service information; (b) the circumstances, including the dates of exposure; (c) description of disease claimed; (d) age at time of exposure, (e) dosage estimate; (f) time lapse between exposure and onset of disease; (g) gender, pertinent family history and employment history; (h) history of exposure to known carcinogens or radiation, including smoking; and (i) other relevant information. R. at 230-31. The C & P Director subsequently forwarded this information to the Under Secretary for Health. The subject line of the memorandum reads: “Radiation Review — 38 C.F.R. § 3.311.” R. at 222.

In July 2008, the chief public health and environmental hazards officer (CPHEHO) responded to the C & P Director’s request.2 In sum, the CPHEHO noted that Mr. Parrish’s dose estimates of 16,1,1 and 3 rem were the worst-case assumptions, and that although the Interactive Radioe-pidemiological Program is used to estimate the likelihood that radiation exposure is related to malignant neoplastic disease,3 the program did not cover non-neoplastic disease such as COPD and pulmonary fibrosis. The CPHEHO noted the following research findings: (1) There were no peer-reviewed studies documenting a statistically significant association between pulmo[394]*394nary fibrosis or COPD and a dose response to radiation exposure; (2) some research showed a significant dose-response relationship for respiratory disease and other non-neoplastic diseases, but smoking also affects noncancer mortality; (3) additional research confirmed these findings but noted that it was not possible to rule out a model with a threshold as high as 50 rem for other non-neoplastic diseases;4 (4) lifetime noncancer risks for people exposed as adults to 100 rem were similar to those for solid cancer, and for people exposed as children, the risks were about half as great. Noting that Mr. Parrish was a former smoker, the CPHEHO concluded in light of the stated research that it was unlikely that Mr. Parrish’s COPD and pulmonary fibrosis can be attributed to in-service ionizing radiation exposure. R. at 219.

Subsequently, the C & P Director conducted radiation review5 and noted, inter alia, the CPHEHO’s medical opinion, the worst-case dosage estimates from DTRA, that Mr. Parrish’s conditions were diagnosed 40 years after exposure to ionizing radiation, and that Mr. Parrish reported having been a smoker for 29 years. The C & P Director opined that there was no reasonable possibility that Mr. Parrish’s COPD and pulmonary fibrosis are the result of his exposure to ionizing radiation in service. Thereafter, the RO issued a Supplemental Statement of the Case continuing the denial of the claim. On appeal, the Board explained that the matter hinged on knowledge of the amount of radiation exposure endured by Mr. Parrish. The Board denied disability compensation because, inter alia, the CPHEHO’s and C & P Director’s opinions were based on complete historical data with regard to Mr. Parrish’s radiation exposure while Mr. Parrish’s private physician’s opinion was not. Mr. Parrish timely appealed.

II. ANALYSIS

A. The Parties’ Arguments

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Related

Marvin O. Johnson v. Eric K. Shinseki
26 Vet. App. 237 (Veterans Claims, 2013)
William R. Young v. Eric K. Shinseki
25 Vet. App. 201 (Veterans Claims, 2012)

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Bluebook (online)
24 Vet. App. 391, 2011 U.S. Vet. App. LEXIS 843, 2011 WL 1518666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-l-parrish-v-eric-k-shinseki-cavc-2011.