Chinnock v. Turnage, 90-16535

• Decision Date: 08 June 1993
• Docket Number: No. 90-16535,90-16535
• Citation: 995 F.2d 889
• Parties: Dennis M. CHINNOCK, Plaintiff-Appellant, v. Thomas K. TURNAGE, Administrator, Veterans' Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 889

995 F.2d 889

Dennis M. CHINNOCK, Plaintiff-Appellant, v. Thomas K. TURNAGE, Administrator, Veterans' Administration,

Defendant-Appellee.

No. 90-16535.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 11, 1991.

Decided June 8, 1993.

Trish M. Higgins, Orrick, Herrington & Sutcliffe, Sacramento, CA, for plaintiff-appellant.

Deborah Ruth Kant, U.S. Dept. of Justice, Civ. Div., Washington, DC, for defendant-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: HUG, HALL, and O'SCANNLAIN, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Dennis Chinnock is a veteran who applied for disability benefits for disabilities resulting from a brain tumor that he contends was caused by radiation exposure while he was serving in the United States Air Force. The Air Force and, subsequently, the Board of Veterans' Appeals denied his application for benefits. The radiation exposure which Chinnock asserts caused the tumor occurred while he was working on a top secret project. Chinnock challenged the Veterans Administration's ("VA") denial of his application in district court, contending that he was deprived of due process because he was not given a hearing before persons authorized to receive top secret information, and he was therefore unable to present fully the nature and circumstances of his radiation exposure. The district court granted the Government's motion for summary judgment, reasoning that the procedures through which Chinnock's claim was considered were fair, and that a secure hearing at which Chinnock could present classified information would serve no useful purpose because he was ineligible for benefits under applicable regulations regardless of the nature of the exposure. The court concluded that the VA had interpreted its regulations to preclude Chinnock's effort to prove his entitlement to benefits, and that the court's "limited jurisdiction to review VA benefit determinations does not permit it to substitute its judgment for that of the VA with respect to the proper interpretation of these regulations."

The district court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction to review the final order of the district court under 28 U.S.C. § 1291. We affirm.

I.

Chinnock was a nuclear chemistry technician for the United States Air Force at McClellan Air Force Base from 1966 until 1970. His work, which required a "top secret" security clearance, involved the purification of hazardous and radioactive chemical samples. In May 1970, during a routine dissolution of a radioactive solution, Chinnock's left hand accidentally was exposed directly to the radioactive material. The radioactive exposure was confirmed at the base hospital, where Chinnock was instructed to "rigorously scrub" his hand to reduce the emissions. Chinnock scrubbed his hand until it was raw and bleeding, and received no further medical care at that time. A 24-hour urine sample was taken from Chinnock, but it was not analyzed for radioactive content until two weeks after it was taken.

In the years after his discharge, Chinnock experienced a loss of hearing in his left ear, double vision, difficulties walking, and dragging of his left foot. In 1978, he was diagnosed as having an "acoustic neuroma," a large tumor, at the base of the left side of his brain. The tumor was removed in a series of four operations (two in 1978, one in 1980, one in 1981). Chinnock suffered permanent damage resulting in chronic headaches, pain, partial facial paralysis, and diminished coordination and strength.

In 1981, he applied for veterans' disability benefits, claiming that his tumor was causally related to his exposure to radiation during active duty. The Air Force had disposed of the safety reports from his accident. The Air Force therefore created three dosage reconstruction reports for use by the VA in its consideration of Chinnock's claim. The reports were based on the urinalysis, Geiger counter and film badge readings for Chinnock's overall service exposure to certain forms of radiation, Chinnock's recollection of Geiger counter and film badge readings for the day of the accident, and Air Force assumptions about the type of radioactive material involved in the accident. The Air Force reports concluded that Chinnock's exposure to radiation while he was in the service was "low level" and had not caused his tumor and disability.

On June 14, 1982, the VA denied Chinnock's claim on the grounds that his tumor was not attributable to radiation exposure, there was no evidence that his condition originated in service or during the presumptive period, and there was no evidence of residuals of radiation exposure. On June 28, 1982, Chinnock filed a notice of disagreement with the VA's decision. Chinnock continued to submit additional evidence, which the VA considered as it continued to deny his application for benefits.

Chinnock believed that the Air Force's assumptions about the type of radioactive material involved were wrong. He requested a secure hearing before officers authorized to receive classified information so that he would be able to testify as to what the material really was, but the VA denied his request. He was given a hearing before a three-member panel of the Board of Veterans' Appeals on September 2, 1987, where he raised the security problem again. On January 19, 1988, the Board issued its decision, agreeing with the Air Force reports and denying Chinnock's request for benefits. The Board's Conclusion of Law was that:

Residuals of radiation exposure, to include acoustic neuroma, were not incurred in or aggravated by military service, nor may its incurrence be presumed. (38 U.S.C. 301, 310, 312, 313; 38 C.F.R. 3.102, 3.307, 3.309, 3.311b, 4.3).

The Board held that Chinnock had not established service connection "for residuals of radiation exposure." Chinnock then filed an action in federal court against the administrator of the VA. ¹ Chinnock claimed that he had been deprived of due process by the denial of his request for a hearing before officers with security clearances, and that the case should be remanded for proceedings consistent with due process.

On August 24, 1990, the district court granted the Government's motion for summary judgment on the grounds that the agency's procedures were adequate and fair, and that an additional proceeding was unnecessary because Chinnock was ineligible for benefits under existing VA regulations. Chinnock filed a timely appeal to this court. We now review de novo the district court order granting summary judgment. Ford v. Manufacturers Hanover Mortgage Corp., 831 F.2d 1520, 1523 (9th Cir.1987).

II.

This appeal calls upon us to consider the operation of 38 C.F.R. § 3.311b, which applies to veterans' disability benefits claims, such as Chinnock's, based on exposure to ionizing radiation. Section 3.311b(b)(1) establishes the procedure for the VA's initial review of such claims. That subsection sets forth three requirements which a claim must meet before it can be determined that the disabling disease in question has resulted from exposure to ionizing radiation, and that the claimant therefore is entitled to disability benefits. Those three requirements are: (1) the veteran was exposed to ionizing radiation while in service; (2) the veteran subsequently developed a radiogenic disease specified in § 3.311b(b)(2); and (3) the disease first became manifest within the period specified in § 3.311b(b)(4). Chinnock's affliction is not among those listed in § 3.311b(b)(2), therefore his claim clearly fails to satisfy the second requirement.

The dispositive question in this appeal is whether the list of diseases in § 3.311b(b)(2) is exclusive--that is, whether these are the only radiation-caused diseases for which a veteran may receive disability benefits, or whether a veteran may attempt to prove that he or she is entitled to benefits based on a disease which is not listed.

As a general matter, to qualify for benefits a veteran must show that his or her disability is "service-connected"--that is, that the disability was incurred or aggravated in the line of active duty. 38 U.S.C. § 101(16). VA regulations provide that a veteran may establish service connection by directly proving a causal connection between the disability and active service, or by relying on certain presumptions. 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309. Specifically for disability claims based on exposure to ionizing radiation, a veteran establishes service connection by satisfying the three requirements in § 3.311b(b)(1) discussed above.

Chinnock concedes that his claim does not satisfy the § 3.311b(b)(1) requirements, but he argues that he may nevertheless seek to establish that his disability is service-connected by submitting direct proof that his radiation exposure during active service caused his acoustic neuroma. In other words, he argues that § 3.311b does not provide the exclusive means by which a radiation-exposed veteran may attempt to establish service connection, and that he may therefore try to prove under § 3.303(a), (d) and § 3.304 that his disease was incurred during service as a result of radiation exposure. He then argues that he was deprived of due process in his effort to establish service connection under §§ 3.303 and 3.304 because he was unable to present necessary classified information in support of his claim.

Chinnock bases his argument that § 3.311b is not the exclusive avenue for establishing that a radiation-caused disease is service-connected on subsection (h) of that regulation. The version of § 3.311b(h) that applied at the time Chinnock initiated this case provides that "[n]othing in this section will be construed to prevent the establishment of service connection for any injury or disease otherwise shown by sound scientific or medical evidence to have been incurred or aggravated during active service."...