Combee v. Brown

• Decision Date: 01 September 1994
• Docket Number: No. 93-7107,93-7107
• Citation: 34 F.3d 1039
• Parties: Clyde R. COMBEE, Claimant-Appellant, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1039

34 F.3d 1039

Clyde R. COMBEE, Claimant-Appellant, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.

No. 93-7107.

United States Court of Appeals Federal Circuit.

Sept. 1, 1994.

Rehearing Denied Oct. 31, 1994.

Ronald L. Smith, Disabled American Veterans, Bowie, MD, argued, for claimant-appellant.

Virginia M. Lum, Dept. of Justice, Washington, DC, argued, for respondent-appellee. Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Anthony H. Anikeeff, Asst. Director and Gerald M. Alexander, Attorney, Commercial Litigation Branch, Dept. of Justice, Washington, DC, were on the brief, for respondent-appellee. Also on the brief were Donald E. Zeglin and Martin J. Sendek, Dept. of Veterans Affairs, Washington, DC, of counsel.

Before ARCHER, Chief Judge, CLEVENGER, and RADER, Circuit Judges.

RADER, Circuit Judge.

Mr. Combee sought to show a connection between his exposure to radiation during service in the armed forces and his maladies. The Department of Veterans Affairs (Secretary) had promulgated an exclusive list of radiogenic conditions with a presumptive connection to exposure to ionizing radiation. Mr. Combee's condition, neutropenia, is not on that list. Therefore, the Board of Veterans Appeals found, and the Court of Veterans Appeals affirmed, that Mr. Combee did not show a connection between his service and his malady. Both the Board and the Court of Veterans Appeals construed section 5 of the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub.L. No. 98-542, Sec. 5, 98 Stat. 2725, 2727-29 (1984), to preclude proof of direct service connection. Because section 5 does not remove a veteran's right to pursue direct service connection with proof of actual direct causation, this court reverses and remands for such consideration.

BACKGROUND

Mr. Combee served in the United States Army during World War II. The Army assigned Mr. Combee to duty as a military policeman in Nagasaki, Japan. He arrived in Nagasaki between one and two weeks after the detonation of the atomic bomb in 1945. During the ten days Mr. Combee spent in Nagasaki, he consumed local food and water. Therefore, Mr. Combee qualifies as a radiation exposed veteran under section 5(a)(1)(B) of the Act, 98 Stat. at 2727, and under 38 C.F.R. Sec. 3.311b(b)(1)(i) (1993).

Mr. Combee's service records indicate that, in 1946, he received treatment for "scabies," but was allergic to the treatment and developed acute dermatitis. In 1958, Mr. Combee began receiving treatment for eczema. He alleged that his exposure to ionizing radiation in 1946 had exacerbated his skin Mr. Combee first filed a claim for veterans' benefits on March 21, 1968. He sought to show a connection between his service in Nagasaki and his skin disorders. The Veterans Affairs Regional Office (VARO) denied service connection for Mr. Combee's claimed maladies--chronic xerosis, herpes, leukopenia of unknown etiology, and thrombocytopenia of unknown etiology. Combee, 4 Vet.App. at 81. Leukopenia is a reduction in the circulating white blood cell count to less than 4000 per microliter. The Merck Manual 1173 (Robert Berkow et al. eds., 15th ed. 1992). In 1986, Mr. Combee filed a claim for benefits due to his leukopenia. In 1988, the Board affirmed a denial of this claim as well.

condition. Combee v. Principi, 4 Vet.App. 78, 80-81 (1993).

In 1989, two doctors expressed opinions that Mr. Combee suffered from both leukopenia and neutropenia. Neutropenia is "a reduction in the blood neutrophil (granulocyte) count often leading to an increased susceptibility to bacterial and fungal infections." The Merck Manual at 1173. Mr. Combee filed again. The VARO treated the filing as a request to reopen the 1988 claim. The VARO denied the request because it sought relief for the same condition under a new name and because the Radiation Compensation Act did not include either leukopenia or neutropenia as radiogenic diseases.

Again, the Board and the Court of Veterans Appeals affirmed. Both the Board and the court found that Mr. Combee did not have a radiogenic disease within the meaning of 38 C.F.R. Sec. 3.311b(b)(2) (1993), the Secretary's list of radiogenic conditions. The Court of Veterans Appeals reasoned that the VARO reasonably interpreted section 3.311b(b)(2) as an exclusive list of radiogenic diseases qualifying for the statutory presumption of 38 U.S.C. Sec. 1154(a)(2) (Supp. IV 1992). Combee, 4 Vet.App. at 92-94. The court noted that if Mr. Combee's condition had appeared on this list, he could have shown a connection to his service based solely on his exposure to ionizing radiation. The court denied Mr. Combee's request for en banc review of this decision with two judges dissenting. Combee v. Brown, 5 Vet.App. 248 (1993). Mr. Combee appeals.

DECISION

This court reviews a Court of Veterans Appeals decision to determine whether interpretation of any regulation in the decision is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to a constitutional right; (3) in excess of statutory jurisdiction or in violation of a statutory right; or (4) without observance of procedure required by law. 38 U.S.C. Sec. 7292(d)(1) (Supp. IV 1992).

I.

Congress enacted the Radiation Compensation Act in an atmosphere of scientific and medical uncertainty about the long-term health effects of exposure to dioxin and ionizing radiation. See Sec. 2(4), (12), 98 Stat. at 2725-2726. Due to this uncertainty, veterans exposed to radiation were rarely successful in proving a service connection for their maladies. See, e.g., 130 Cong.Rec. 13,147-13,149 (1984) (statement of Sen. Cranston).

An honorably discharged veteran can obtain compensation:

For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs.

38 U.S.C. Sec. 1110 (Supp. IV 1992). The Secretary of Veterans Affairs accounts for certain factors in ascertaining direct service connection:

The Secretary shall include in the regulations pertaining to service-connection of disabilities (1) additional provisions in effect requiring that in each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence....

38 U.S.C. Sec. 1154(a) (Supp. IV 1992).

Thus, to show service connection, veterans, in effect, have to show that exposure to radiation or another hazardous condition during service actually caused their disease. ^* 38 C.F.R. Sec. 3.303 (1993). For example, in a 1990 case involving a claim for hypothyroidism, the Veterans Administration General Counsel denied compensation because service exposure to ionizing radiation was not shown to be a "causative factor" in the development of the disease. VA Off. Gen. Counsel Precedent Op. 69-90 (July 18, 1990), discussed in Combee, 4 Vet.App. at 92.

Proof of direct service connection thus entails proof that exposure during service caused the malady that appears many years later. Actual causation carries a very difficult burden of proof. Cf. Munn v. Secretary of Dep't of Health & Human Servs., 970 F.2d 863, 865 (Fed.Cir.1992); Grant v. Secretary of Dep't of Health & Human Servs., 956 F.2d 1144, 1147-49 (Fed.Cir.1992).

Limited scientific knowledge about radiation's effects compounds the difficulty of directly proving service connection. The House Report accompanying the Radiation Compensation Act discussed this difficulty:

Many of these troops [atomic veterans] were exposed to low-level ionizing radiation which may or may not have been accurately documented with proper exposure devices or methodologies. To compound the problem, there is limited scientific understanding of the relationship between exposure to low doses of ionizing radiation and subsequent health problems.

H.R.Rep. No. 592, 98th Cong., 2d Sess. 7 (1984), reprinted in 1984 U.S.C.C.A.N. 4449, 4453. The Report also noted:

Although current evidence indicates that some veterans exposed to ionizing radiation are experiencing serious medical problems, available data falls far short of meeting the test that the exercise of sound medical judgment reflects that these disabilities are related to military service.

Id. at 9, reprinted in 1984 U.S.C.C.A.N. at 4455.

Recognizing the difficulties of showing service connection for radiation maladies, Congress enacted the Radiation Compensation Act in 1984. The Act provided for a procedure to determine--based on sound scientific and medical evidence--which diseases had some connection to radiation exposure. Section 4 expanded the scope of section 1154:

The Secretary shall include in the regulations ... (2) the provisions required by section 5 of the [Radiation Compensation] Act.

38 U.S.C. Sec. 1154(a)(2) (Supp. IV 1992), amended by Radiation Compensation Act Sec. 4, 98 Stat. at 2727.

Section 6(d) of the Act, in turn, established the Scientific Council of the Veterans' Advisory Committee on Environmental Hazards. Section 6(d), 98 Stat. at 2729-2730. Section 6(d)(2) charges the Scientific Council with evaluating scientific studies regarding the connection between radiation...