Walls v. Brown

5 Vet. App. 46, 1993 U.S. Vet. App. LEXIS 148, 1993 WL 128497
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 23, 1993
DocketNo. 91-210
StatusPublished
Cited by1 cases

This text of 5 Vet. App. 46 (Walls v. Brown) 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
Walls v. Brown, 5 Vet. App. 46, 1993 U.S. Vet. App. LEXIS 148, 1993 WL 128497 (Cal. 1993).

Opinion

IVERS, Associate Judge:

Gertrude G. Walls, the veteran’s widow, appeals from an October 19, 1990, Board of Veterans’ Appeals (BVA or Board) decision [47]*47which denied her claim for service connection for the cause of her husband’s death due to exposure to ionizing radiation. The Court has jurisdiction of the case under 38 U.S.C.A. § 7252(a) (West 1991). For the reasons noted in this opinion, we affirm the decision of the BVA.

FACTS

The veteran served in the United States Army from April 1944 to April 1946. R. at 1. The record reflects that in December 1976, a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) rating board denied the veteran’s claim for service connection for, inter alia, colon cancer. R. at 22.

The veteran died in 1979, and a copy of his death certificate in the record shows the cause of death as “sepsis due to lymphoma.” R. at 104. Sepsis is “a toxic condition resulting from the spread of bacteria or their products from a focus of infection.” Webster’s Medical Desk Dictionary 648 (1986) [hereinafter Webster’s]. Lymphoma is “a usu[ally] malignant tumor of lymphoid tissue.” Webster’s at 400.

In October 1988, the veteran’s widow wrote to the VA requesting compensation for the veteran’s death and claiming it was caused by exposure to radiation in occupied Japan. R. at 105. She enclosed documents with her letter, including a “Separation Qualification Record” which shows that the veteran

[s]erved with the 24th Infantry Division in the Asiatic-Pacific Theater of Operation for 16 months. Was in charge of the dispatching of 22 military motor vehicles in a motor pool. Assigned the trucks to drivers and made out trip tickets. Saw that the trucks were maintained and kept in good condition. Drove all types of trucks to 2V2 tons.

R. at 111.

On January 26, 1989, an RO rating board denied Mrs. Walls’ claim, stating,

S[ervice] m[edical] r[ecords] are completely negative for complaint, treatment or diagnosis of the fatal condition. We note from the record that the veteran did suffer from malaria and syphilis in service but we find no way to relate these conditions to the fatal lymphoma. We note that during the veteran’s lifetime, s[ervice] connection] was denied for arthritis, stomach ulcer, prostatitis, defective vision, cancer of the colon and jungle rot which the veteran felt was secondary to his s[ervice] c[onnected] malaria.

R. at 121. The rating board did not mention Mrs. Walls’ claim that the veteran’s lymphoma was caused by radiation exposure in service. Id.

On February 24, 1989, the RO received correspondence from Mrs. Walls to Senator John Warner, forwarded from the Senator, who “requested] the status of the attached communication.” R. at 124. On March 1, 1989, the RO issued a deferred rating decision with an instruction to “[djevelop [the case] for radiation exposure.” R. at 132. On March 29, 1989, the RO adjudication officer wrote to the Defense Nuclear Agency for

confirm[ation of] the deceased veteran’s presence in the performance of official military duties within ten miles of the city limits of either Hiroshima or Nagasaki, Japan, or other official military support activities of the army of occupation which would have placed him at the location of the detonations of nuclear weapons at either Hiroshima or Nagasaki.

R. at 133. In addition, the adjudication officer noted,

The evidence indicates the veteran served with the Headquarters Company, Motor Pool, of the Third Battalion of the 34th Regiment. During his lifetime, he indicated he was stationed at Atami Air Base in Japan from October 1945 to April 1946. His military occupation and rank at that time was Tec 5, Dispatcher-Driver, Light Truck.

Id.

On March 31, 1989, the RO received a Notice of Disagreement from Mrs. Walls with attached morning reports which appear to show that the veteran was in Taku-ma, Shikoku, Himeji, and Honshu, Japan, in January and March 1946. R. at 128-31.

[48]*48On May 5, 1989, the Defense Nuclear Agency responded to the RO adjudication officer’s request for information about the veteran’s military activities. R. at 134-35. The letter stated, inter alia,

Mr. Walls’ service record could not be found at its storage location at the National Personnel Records Center in St. Louis, Missouri; it was apparently destroyed in the fire that occurred there in 1973. Because this primary source is unavailable, a search of alternate unit records was required to provide an outline of Mr. Walls’ service with the occupation forces in Japan.
According to Army historical records, Mr. Walls served with Headquarters Company, 3rd Battalion, 34th infantry Regiment (Hq Co, 3rd Bn, 34th Inf) during the American occupation of Japan. Arriving from the Philippines, this unit landed at Matsuyama (about 35 miles from Hiroshima and 180 miles from Nagasaki) on October 22, 1945. The unit remained there until December 11, 1945, when it moved to Takumu (about 70 miles from Hiroshima and 240 miles from Nagasaki). On January 20, 1946, Hq Co, 3rd Bn, 34th Inf departed Takumu and moved to Himeji (approximately 130 miles from Hiroshima and 300 miles from Nagasaki). The unit was still stationed there on March 23, 1946, when Mr. Walls was transferred to the 4th Replacement Depot at Tokyo for return to the continental United States.
R. at 134.

The RO issued a Statement of the Case dated May 31, 1989. R. at 137-43. On June 1, 1989, the RO issued a rating decision denying service connection for the cause of the veteran’s death based on radiation exposure. The rating board noted,

The veteran’s unit was involved in the occupation of Japan. However, his unit was never assigned to Hiroshima or Nagasaki and was never less than 35 miles from either city. We have no evidence that the veteran himself was assigned to any temporary duty in either Hiroshima or Nagasaki. The widow has submitted some morning records showing temporary duty. He was assigned to four days of temporary duty on [January 11, 1946,] and to an unknown period of temporary duty on [March 22, 1946]. He was transferred to a replacement depot on [March 23, 1946] in Tokyo for return to the United States.
The evidence does not establish that the veteran was exposed to ionizing radiation as a result of participating in the occupation of Hiroshima or Nagasaki. There is no evidence that he had official military duties within ten miles of the city. Entitlement is not established under either 38 C.F.R. [§] 3.311[b] or Public Law 100-321.

R. at 144. The RO issued a Supplemental Statement of the Case dated June 19, 1989. R. at 145-48.

On August 31, 1989, the RO received Mrs. Walls’ VA Form 1-9 substantive appeal, on which she stated, inter alia, “Rules of regulation in the Federal Register states [sic] that if information of service records are [sic] incomplete that the [v]eteran or dependent will be given the benefit of the doubt (copy enclosed).” R. at 149-50. Mrs. Walls enclosed a copy of 38 C.F.R. § 3.311b

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11 Vet. App. 274 (Veterans Claims, 1998)

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Bluebook (online)
5 Vet. App. 46, 1993 U.S. Vet. App. LEXIS 148, 1993 WL 128497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walls-v-brown-cavc-1993.