Harden V. West Atten: Stretch

[Guest allan]

Author: USCVA

Typist: USCVA

UNITED STATES COURT OF VETERANS APPEALS

No. 95-61

Glenn M. Hardin, Appellant,

v.

Togo D. West, Jr.,

Acting Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans' Appeals

(Decided February 9, 1998

)

Glenn M. Hardin, pro se.

Mary Lou Keener, General Counsel; Ron Garvin, Assistant General

Counsel; R. Randall Campbell, Deputy Assistant General Counsel; and Mary

Ann Flynn were on the brief for the appellee.

Before NEBEKER, Chief Judge, and FARLEY and HOLDAWAY, Judges.

NEBEKER, Chief Judge: The appellant, Glenn M. Hardin, appeals a

September 21, 1994, decision of the Board of Veterans' Appeals (BVA or

Board) which, inter alia, denied service connection for chronic pain

syndrome, neuropathy, myelopathy, and normochromic anemia, finding that

those conditions were not incurred during the veteran's service. Upon

consideration of the record on appeal and the briefs of the parties, the

Court will vacate the Board's decision and remand the matters for the

following reasons.

I. FACTS

Mr. Hardin served on active duty in the U.S. Air Force from April

1954 to December 1963. Record (R.) at 202, 204. He participated in

Operation DOMINIC I as a fuels specialist stationed on Christmas Island in

the spring of 1962. R. at 202, 441-43. In a July 1962 letter to Mr.

Hardin's commanding officer, Major Mervin K. Jacobs offered the following:

(1) During the 1962 nuclear tests, which were held at Christmas

Island, AlC Hardin was assigned to aircraft refueling as a refueling

operator.

(2) The mission of the aircraft refueling section was to refuel all

mission, MATS and transient aircraft . . . to ensure mission success.

(3) During the first two months of operations, personnel and equipment

were inadequate to support all refueling requirements in a normal forty

hour week. Consequently, personnel were required to work twelve and

sometimes sixteen hour shifts, seven days a week, on a continuing basis.

R. at 291. Operation DOMINIC I was a series of 36 atmospheric nuclear

weapon detonations held in the Pacific Ocean area from April to November

1962. R. at 698. DOMINIC I is recognized by VA as an "operational period"

in which onsite participation entitles veterans to presumptive service

connection for several specified conditions. 38 U.S.C. 1112©; see

also 38 C.F.R. 3.309 (1996). "Onsite participation" is defined as "

presence at the test site, or performance of official military duties in

connection with ships, aircraft or other equipment used in direct support

of the nuclear test." 38 C.F.R. 3.309(d)(3)(iv)(A).

In March 1978, a VA regional office (RO) denied service connection

for arthritis (multiple joints) and a skin condition secondary to exposure

to atomic radiation. R. at 327. The RO determined that "exposure to

atomic radiation [was] not shown," and thus concluded that service

connection for any radiation-related condition was not warranted. Id.

In July 1984, Mr. Hardin underwent a VA radiation physical

examination. R. at 570-80. The examining physician, Dr. Kaufmann, did

not have access to the veteran's service records and relied, in part, on

the veteran's history. R. at 577-78. On objective examination, Dr.

Kaufmann noted that the skin of the veteran's face and head appeared

slightly reddened and "showed signs of a dull redness of a type that is

associated with chronic actinic deteriorations." R. at 574. (Actinic

refers to rays of light beyond the violet end of the spectrum that produce

chemical effects, i.e., radiation. Dorland's Illustrated Medical

Dictionary 21 (28th ed. 1994).) The physician further included the

following comments:

This patient gives a rather clear and, on repeated questioning, a

consistent history of exposure to radiation during an atomic tests [sic]

series in 1962. If the details of his history are correct, he apparently

suffered some actinic damage immediately following one blast, and may have

experienced some gastrointestinal disturbances following two blasts. He

also gives a history, admittedly anecdotal, of being radioactive [upon]

monitoring with a Geiger counter following some of his

exposures.

In subsequent years, he has shown some premature aging in hair and

skin with apparent increased sensitivity for actinic damage, persistent

gastrointestinal distress and possible laryngeal and prostatic nonspecific

changes which may or may not be attributed to radiation.

. . . .

Overall, the patient gives a history which would be consistent with

some acute radiation effects, and possibly some residual effects.

Possibility should [be] considered that some of his other processes may

have been influenced by radiation so that his response to other states and

the speed and rapidity of healing may have delayed and that some of the

premature aging effects that he has shown could in fact possibly be

attributed to radiation exposure.

R. at 573. In July 1991, Mr. Hardin was admitted to the hospital with

anemia, blood in his stool, hemocult positive stools, and generalized pain

. R. at 877. On discharge, the final diagnoses included "(1) Anemia,

normocytic, normochromic cause undetermined, probably due to previous

excess radiation in 1962 . . . (3) Chronic pain syndrome, post radiation

with neurological dysfunction involving the right arm and right leg." R.

at 878.

In February 1992, Dr. Richard Furr sent a letter on the veteran's

behalf to Mr. Hardin's representative. R. at 867-77. Therein, he opined

that radiation exposure on Christmas Island in 1962 significantly

contributed to the veteran's ailments. Id. Specifically, he stated the

following:

[Mr. Hardin's incomplete quadriplegia] is probably due to late delayed

myelopathy following exposure to radiation on Christmas Island in 1962.

Chronic normocytic normochromic anemia is also a problem probably due to

radiation exposure. Again no other cause can be found and this is a

generally accepted problem caused by radiation exposure. Osteoporosis of

the axial skeleton is probably due to radiation, inability to bear weight

and lack of exercise.

Id. In May 1992, the RO denied entitlement to service connection for

chronic pain syndrome, neuropathy, myelopathy, and normocytic,

normochromic anemia, finding that "these conditions are not recognized as

radiogenic diseases." R. at 917-19. In response, Mr. Hardin submitted an

excerpt from the Cecil Textbook of Medicine. R. at 931. On the copy

submitted was the following notation from Dr. Furr: "This man has

quadriplegia due to myelopathy due [to] radiation. Any layman can read

the simple statements in this book concerning radiation and will know that

." Id. In July 1992, the RO issued a confirmed rating decision, which

the veteran

appealed. R. at 942, 958.

At a June 1993 personal hearing, Mr. Hardin testified that he

witnessed the explosions, on at least one occasion flew into the drop zone,

and serviced the planes involved in nuclear tests on Christmas Island, and

that he did not wear any protective clothing or a film badge. R. at 978.

A Christmas Island Base Clearance document, dated May 22, 1962, reflects

that the veteran cleared several listed departments, but the sign-off

section for "Radiological Safety (Film Badge)" is blank. R. at 703. Mr.

Hardin also stated that after some of the tests he was vigorously sick and

that he received radiation burns on the left side of his face. R. at 979.

The nuclear test dosimetry file, maintained by the Reynolds Electrical and

Engineering Co., Inc., reports a Glenn M. Harding as receiving 0.000

roentgens of radiation, and the Air Force later concluded that, because

the service number listed for this individual matched the veteran's, a

spelling error had occurred. See R. at 354, 357, 444, 447, 695.

In the September 1994 BVA decision here on appeal, the Board denied

his claims for service connection, finding that the presumptive provisions

of 38 U.S.C. 1112 © and 38 C.F.R. 3.309(d) did not apply. R. at 8-

27. The Board stated that "[a]lthough the veteran qualifies as a

'radiation-exposed veteran' because of his participation in Operation

DOMINIC, neither chronic pain syndrome, neuropathy, myelopathy, nor

normocytic, normochromic anemia is one of the specified diseases to which

the presumption applies." R. at 21. The Board dismissed the available

physicians' opinions, relying on this Court's opinion in Combee v.

Principi, 4 Vet.App. 78 (1993), en banc review denied sub nom. Combee v.

Brown, 5 Vet.App. 248 (1993), and concluding that the diagnoses linking

radiation exposure to his current conditions were based solely on the

veteran's self-reported history. The Board further stated the following;

As for the opinion of Dr. Furr that the veteran's claimed disabilities

are probably due . . . to radiation exposure, the veteran is precluded

from establishing service connection based solely on his exposure to

ionizing radiation. . . . As neither the specific statutory nor regulatory

provisions pertaining to claims based on exposure to ionizing radiation

apply, there exists no adequate evidentiary and legal basis to attribute

the veteran's claimed disorders to any exposure to ionizing radiation in

1962.

R. at 22. The Board also addressed the possibility of service

connection on a nonradiation basis, but determined that, as there was "no

evidence of record that would bridge the gap between

service and initial diagnosis of these conditions, the evidence,

including that pertinent to service, does not establish that the disorders

were present coincident with service." R. at 23.

II. ANALYSIS

Service connection for a condition which is claimed to be

attributable to ionizing radiation exposure during service may be

established in one of three different ways. Ramey v. Brown, 9 Vet.App. 40,

44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997).

First, there are 15 types of cancer which are presumptively service

connected. 38 U.S.C. 1112©. Second, 38 C.F.R. 3.311(b) (1996)

provides a list of "radiogenic diseases" which will be service connected

provided that certain conditions specified in that regulation are met.

Third, direct service connection can be established by "show[ing] that the

disease or malady was incurred during or aggravated by service," a task

which "includes the difficult burden of tracing causation to a condition

or event during service." Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir.

1994).

Qualification under the presumptive provision of 38 U.S.C. 1112©

occurs when a veteran suffers from one of the fifteen listed cancers,

and establishes participation in a "radiation risk activity" defined

as:

(i) Onsite participation in a test involving the atmospheric detonation

of a nuclear device.

(ii) The occupation of Hiroshima or Nagasaki, Japan, by United States

forces during the period beginning on August 6, 1945, and ending on July 1,

1946.

(iii) Internment as prisoner of war in Japan (or service on active duty

in Japan immediately following such internment) during World War II which (

as determined by the Secretary) resulted in an opportunity for exposure to

ionizing radiation comparable to that of veterans described in clause (ii)

of this subparagraph.

38 U.S.C. 1112©(4)(B). The disorders from which Mr. Hardin suffers

are not included in the statute. 38 U.S.C. 1112 ©(2)(A-M). Thus,

while the veteran is deemed a "radiation exposed veteran," for section

1112 purposes, the presumption of service connection for the unlisted

health conditions is unavailable. See Rucker v. Brown, 10 Vet.App. 67, 71 (

1997). Similarly, chronic

pain syndrome, neuropathy, myelopathy, and normochromic anemia, are not

listed among the specifically enumerated "radiogenic diseases." 38 C.F.R

. 3.311(b)(2)(iv),(xii),(xiii); see also Ramey, supra.

However, in Combee, the United States Court of Appeals for the

Federal Circuit determined that service connection for an unlisted

condition can be pursued under the general VA compensation entitlement

system. Combee, 34 F.3d at 1043; see 38 U.S.C. 1110 (basic entitlement

to disability compensation for wartime veterans). In February 1995,

pursuant to the Federal Circuit's Combee decision, the regulation

governing adjudication of claims based on alleged exposure to ionizing

radiation was changed to include conditions not listed but for which there

is competent medical or scientific evidence. Compare 38 C.F.R. 3.311(b)(

2-3) (1994) with 38 C.F.R. 3.311(b)(2-4) (1996). The relevant portion

of the regulation states "If a claim is based on a disease other than one

of those listed . . . VA shall nevertheless consider the claim under the

provisions of this section provided that the claimant has cited or

submitted competent scientific or medical evidence that the claimed

condition is a radiogenic disease." Without regard to the presumptions

found in 38 U.S.C. 1112 and 38 C.F.R. 3.309, when a disease is first

diagnosed after service, service connection may therefore be established

by evidence demonstrating that the disease was in fact "incurred" during

the veteran's service or by evidence that a presumption period applied.

See Combee 34 F.3d at 1042 ("[p]roof of direct service connection . . .

entails proof that exposure during service caused the malady that appears

many years later"); Cosman v. Principi, 3 Vet.App. 503, 505 (1992) ("even

though a veteran may not have had a particular condition diagnosed in

service, or for many years afterwards, service connection can still be

established").

In Ramey, this Court addressed the applicability of Combee to a claim

for service connection for cancer in connection with ionizing radiation.

Ramey, 9 Vet.App. at 45. There, the BVA decision was issued prior to the

Federal Circuit's Combee opinion and change in the regulation, and the BVA

failed to address the question of direct service connection. Unlike the

circumstances in Ramey however, here Mr. Hardin has submitted competent

evidence, including several medical opinions, that his current conditions

are related to radiation exposure.

In his brief, the Secretary argues that the claims are not well

grounded. In Ramey and

Rucker, the Court held that remand to the Board to address whether direct

service connection would apply was unnecessary, as the appellants in those

cases had failed to present well-grounded claims because they lacked

medical evidence of nexus between the alleged radiation exposure and a

current condition. Ramey, 9 Vet.App. at 46; Rucker, 10 Vet.App. at 71-72.

The record here shows that the Secretary's argument is without merit. Mr.

Hardin has medical evidence in the form of physician opinions and

treatises to support his claim for service connection for chronic pain

syndrome, neuropathy, myelopathy, and normochromic anemia as caused by

ionizing radiation; his claims are well grounded. See Rucker, supra; see

also Caluza v. Brown, 7 Vet.App. 498 (1995). The Court further finds that

VA's duty to assist has been triggered. 38 U.S.C. 5107(a). Finally,

while the provided dose estimate reported that the veteran did not receive

any significant level of radiation, the Board has failed to address Mr.

Hardin's statement, supported by the Christmas Island Base Clearance

document, which suggests his radiation level was not monitored.

In Earle v. Brown, 6 Vet.App. 558, 562 (1994), the Court expressly

held that "VA could not rely solely upon the [Defense Nuclear Agency's]

certification that there was no evidence that the veteran had participated

in a radiation-risk activity." Rather, all relevant evidence of record

must be considered and addressed. The dose estimate of radiation exposure

provided to the Air Force is only one piece of evidence to be considered.

Under the statutory criteria of 38 U.S.C. 1112, Mr. Hardin's exposure to

ionizing radiation would not be at issue were he suffering from one of the

specifically listed disorders; he is a "radiation exposed veteran" as that

term is defined and understood. 38 U.S.C. 1112©(4)(A); see also 38 C.

F.R. 3.309. Further evidence of exposure include his physicians'

statements, which opine that his current medical conditions are consistent

with radiation exposure. Whether Mr. Hardin's diagnosed conditions are

related to radiation is a question which requires medical expertise. Mr.

Hardin has offered medical evidence, including statements of a VA doctor,

which support his claim of service connection. In the present

case, as in Earle, a remand is necessary to allow the Board the

opportunity to address the appellant's arguments and all the evidence of

record, including the several medical opinions, and to apply the benefit

of the doubt if it finds the evidence to be in equipoise. Earle, 6 Vet.

App. at 562.

The Court holds that in the instant case, the Board--relying

exclusively on the Air Force's assessment of Mr. Hardin's radiation

exposure--erred by employing its own unsubstantiated medical opinion to

answer whether the claimed conditions were related to service, and

disregarded Mr. Hardin's supporting medical evidence. The Court further

holds that this error was prejudicial. 38 U.S.C. 7261(b). In Colvin v.

Derwinski, 1 Vet.App. 171 (1991), we held that the Board may not

substitute its own medical judgment for independent medical evidence. See

also Cosman, 3 Vet.App. at 506; Hatlestad v. Derwinski, 3 Vet.App. 213,

217 (1992) (Hatlestad II); Budnik v. Derwinski, 3 Vet.App. 185, 187 (1992);

Quarles v. Derwinski, 3 Vet.App. 129, 139 (1992); Tobin v. Derwinski, 2

Vet.App. 34, 39 (1991). While the Board is not required to accept the

medical authority supporting a claim, it must provide its reasons for

rejecting such evidence and, more important, must provide a medical basis

other than its own unsubstantiated conclusions to support its ultimate

decision. Colvin, 1 Vet.App. at 175; see also Simon v. Derwinski, 2 Vet.

App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet.App. 164, 169 (1991) (

Hatlestad I); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990); Murphy v.

Derwinski, 1 Vet.App. 78, 81 (1990).

III. CONCLUSION

Accordingly, the Board's September 21, 1994, decision is VACATED. Mr.

Hardin's claims for service connection for chronic pain syndrome,

neuropathy, myelopathy, and normochromic anemia are REMANDED for

adjudication consistent with 38 C.F.R. 3.311. On remand, the appellant

will be free to submit additional evidence and argument, and the Board

must seek any other evidence it thinks is necessary to the resolution of

the appellant's claim. Quarles, 3 Vet.App. at 141.

http://search.vetapp.gov/isysquery/865901f...f8a0b721/1/doc/

[Stretch]

Allan,

It is helpful to know that the Vets Court caught the errors of the BVA, but discouraging that Hardin, caught a remand. This remand relies on the BVA, to help gather information for Hardin, that will not support their own decision. VA attempts to help Hardin, will be half hearted, evasive, erroneous, misleading, and incompetent.

Not only has this Vet been denied all the way to the CAVC, but he has been stalled for lack of C&P, rating, and adjucation processes of the denied claims.