McGuire v. West, No. 96-215

UNITED STATES COURT OF VETERANS APPEALS
NO. 96-215
JOHN F. MCGUIRE, APPELLANT,
V.
TOGO D. WEST, JR.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided June 30, 1998 )
Jeffrey Wood was on the brief for the appellant.
Mary Lou Keener, General Counsel; Ron Garvin, Assistant General Counsel; and Mary
Ann Flynn were on the brief for the appellee.
Before NEBEKER, Chief Judge, and IVERS and GREENE, Judges.
NEBEKER, Chief Judge: The appellant, John F. McGuire, appeals from a November 27,
1995, Board of Veterans’ Appeals (BVA or Board) decision denying service connection for
cancers of the esophagus and stomach. The issue is whether the Secretary’s regulation defining the
statutory phrase “occupation of Hiroshima and Nagasaki, Japan” unlawfully requires the veteran to
have performed “official military duties” in those cities. For the following reasons, the Court will
uphold the regulation and affirm the Board’s decision.
I. FACTS
The appellant served in the 90th Naval Construction Battalion (90th NCB), U.S. Navy, from
April 1945 to May 1946, and his available service medical records, including his separation
examination report, do not record any cancer. Record (R.) at 20. According to the Defense Nuclear
Agency (DNA), the 1973 fire at the National Personnel Records Center destroyed most of the
appellant’s service records. R. at 91. However, the DNA did state that the 90th NCB was stationed
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in Yokoska, Japan, over 400 miles from Hiroshima and 550 miles from Nagasaki. R. at 53, 91. The
appellant has asserted that his military duties required him to venture close to both Hiroshima and
Nagasaki. Additionally, the appellant stated that he had visited those cites while on weekend leave.
R. at 107, 175-76. Based upon the appellant’s assertion respecting where his official duties sent him,
the DNA stated: “All of these cities are located hundreds of miles from both Hiroshima and
Nagasaki, except Okayama, which is approximately 100 miles from Hiroshima.” R. at 186.
Almost 40 years after leaving Japan, the appellant filed claims for service connection for
esophageal and stomach cancers that he alleged were caused by his exposure to radiation while he
was in Japan. R. at 44-37. The appellant submitted medical evidence that showed he suffered from
esophageal and stomach cancer, but none of this evidence established the etiology of his cancers.
R. at 56, 59-73, 78-89. In March 1990, the RO denied the appellant’s claims because there was no
evidence that the appellant had received enough radiation exposure to be considered for service
connection on that basis. R. at 93-94. However, in a June 1992 decision, the BVA remanded the
appellant’s claims to the RO for an analysis of his exposure due to his weekend trips to Hiroshima
and Nagasaki. R. at 150-52.
On remand, the DNA found that the dose estimate from an eight-hour visit on the day that
occupation forces first arrived at either city would have been less than 0.001 rem. R. at 186. Using
this dose estimate and assuming that the appellant had spent two full weekend days in both
Hiroshima and Nagasaki, a VA Assistant Chief Medical Director estimated the appellant’s maximum
exposure at 0.012 rem. That Assistant Chief Medical Director noted that, at such a low exposure
level, it was unlikely that the appellant’s cancer could have been caused by ionizing radiation. R. at
225. The Compensation and Pension Director agreed, and the RO confirmed its previous denial of
service connection for the appellant’s esophageal and stomach cancers. R. at 228-30.
In the BVA decision here on appeal, the Board found that the veteran’s official military
duties did not take him closer than 100 miles from Hiroshima. Additionally, the Board found that
visiting Hiroshima and Nagasaki while on liberty did not qualify as a radiation risk activity, and,
consequently, the Board held that the appellant’s “esophageal cancer with metastatic involvement
of the stomach may not be service connected on a radiation-presumptive basis.” R. at 13. Moreover,
the Board found that none of the medical evidence addressed the etiology issue except for the
Assistant Chief Medical Director’s determination that, based on the DNA dose estimate, there was
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no connection between the appellant’s cancer and his radiation exposure. Relying on this opinion,
the Board denied the appellant’s claims, finding that the preponderance of the evidence was against
service connection for esophageal and stomach cancers.
II. ANALYSIS
A. General
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(c).
Second, 38 C.F.R. § 3.311(b) (1997) 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).
Initially, the Court notes that the thrust of the appellant’s main argument is that he is entitled to
service connection based upon the presumption provided in 38 U.S.C. § 1112(c). Because the
appellant has declined to appeal the Board’s denial of service connection based upon either
section 3.311(b) or a direct showing of service connection, the Court deems the appellant to have
abandoned those issues. See Bucklinger v. Brown, 5 Vet.App. 435 (1993). Thus, the issue here on
appeal is whether the appellant is entitled to a presumption of service connection for his stomach
and esophageal cancers under § 1112(c).
Qualification under the presumptive service connection provision of 38 U.S.C. § 1112(c)
occurs when a veteran suffers from one of the fifteen listed cancers and establishes that he was a
radiation exposed veteran. The relevant portions of § 1112(c)(3) state:
(A) The term “radiation exposed veteran” means (i) a veteran who, while serving
on active duty, participated in a radiation risk activity. . .
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(B) The term radiation risk activity means. . .
(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.
Under the authority of § 1112, the Secretary has promulgated 38 C.F.R. § 3.309(d)(3)(vi) (1997)
which states:
The term “occupation of Hiroshima or Nagasaki, Japan, by United States forces”
means official military duties within 10 miles of the city limits of either Hiroshima
or Nagasaki, Japan, which were required to perform or support military occupation
functions such as occupation of territory, control of the population, stabilization of
the government, demilitarization of the Japanese military, rehabilitation of the
infrastructure or deactivation and conversion of war plants or materials.
Therefore, it is clear that the regulatory definition of occupation expressly defines the application
of the statutory presumption to “official military duties . . . which were required to perform or
support military occupation functions.”
The appellant argues that the regulation’s use of the phrase “official military duties”
impermissibly limits the presumptive service-connection statute because application of the
regulatory definition is contrary to the line of duty presumption found at 38 U.S.C. § 105(a).
That statute does not draw a distinction between authorized leave or active duty for the purpose
of whether the veteran incurred an injury or disease in the line of duty. Specifically, the appellant
asserts that the regulation “annuls the statutory line-of-duty presumption in all cases where radiation
exposed veterans occupied Hiroshima or Nagasaki while on liberty rather than official military
duties.” Appellant’s Brief at 9. In other words, the appellant’s argument depends upon the theory
that he somehow participated in the occupation of those cities while on leave. Because this Court
and VA have previously required the veteran’s military duties to have been involved with the
occupation of either Hiroshima or Nagasaki as defined by § 3.309(d)(3)(vi), see Walls v. Brown,
5 Vet.App. 46 (1993), the present case turns on whether that regulation impermissibly restricts
the statutory phrase “occupation of Hiroshima and Nagasaki, Japan.”
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B. Occupation
1. Occupation and § 1112(c)
The Secretary of Veterans Affairs has authority under 38 U.S.C. § 501(a) to “prescribe
all rules and regulations which are necessary or appropriate to carry out the laws administered
by the Department and are consistent with those laws.” Determining whether 38 C.F.R.
§ 3.309(d)(3)(vi) violates the Secretary’s statutory authority requires examining the language of
the statute and the interpretation adopted by the Secretary. See Gardner v. Derwinski,
1 Vet.App. 584, 586-87 (1991), aff’d sub nom. Gardner v. Brown, 5 F.3d 1456, 1458 (Fed. Cir.
1993), aff’d, 513 U.S. 115 (1994). In analyzing a statute, we look at the overall structure of the
statute and the specific language at issue. Winn v. Brown, 8 Vet.App. 510, 515 (1996). “If the
intent of Congress is clear, that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress.” Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). Where the plain meaning
of a statute is discernible, that “plain meaning must be given effect unless a ‘literal application of
[the] statute will produce a result demonstrably at odds with the intention of its drafters.'” Gardner,
1 Vet.App. at 587 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)). “When
a word is not defined by statute, we normally construe it in accord with its ordinary or natural
meaning.” Smith v. United States, 113 S. Ct. 2050, 2054 (1993) (citing Perrin v. United States, 444
U.S. 37, 42 (1979)); see also United States v. Seven Misc. Firearms, 503 F. Supp. 565, 573 (D.D.C.
1980) (common words in a statute should be given their common meaning). W e b s t e r ‘ s
Dictionary defines “occupation” as an “occupying or being occupied; specifically, the seizure and
control of a country or area by military forces.” WEBSTER’S NEW WORLD DICTIONARY 937 (3d
College ed. 1988). Thus, using the ordinary definition of the term “occupation,” the statutory
presumption is available only where the veteran participated in the seizure and control of
Hiroshima and/or Nagasaki. Notably, Congress did not extend the presumption to U.S. forces
occupying other areas of Japan. This Congressional intent to exclude veterans in other units
who supported occupation of areas outside Hiroshima and Nagasaki from qualifying for the
presumption is further evidenced by the time limitation stated in the statute: Congress limited
the time period of the presumption to the period from August 6, 1945, to July 1, 1946. This
time period begins, conservatively, when U.S. forces first created a potential radiation area by
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dropping an atomic bomb on Hiroshima. Occupation of Hiroshima by U.S. forces ended in
March 1946, and U.S. troops left Nagasaki in June 1946. See H.R. REP NO. 100-235, at 4,
reprinted in 1988 U.S.C.C.A.N. 412, 414. Therefore, the termination date corresponds to the
time when, historically, U.S. forces were no longer assigned to occupy those areas of Japan.
Reading the statute as a whole and using the plain meaning of the term “occupation”
leads to the conclusion that the intent of the statute is to grant a presumption to those veterans
who somehow participated in the seizure or control of Hiroshima and Nagasaki at a time when
U.S. forces were assigned to occupy those cities. As to the identity of those veterans who qualify
for the presumption under the statute, Congress chose an expansive definition. Congress could
have specifically listed the individual units that were assigned to the occupation of Hiroshima
or Nagasaki. More broadly, Congress could have just stated “all units that were assigned to the
occupation of Hiroshima or Nagasaki.” Instead, Congress delimitated a specific time period for
qualifying occupation forces. Such a choice applies the presumption to any and all veterans
who, although their units might have been officially occupying other areas of Japan, nevertheless
actually participated in the occupation of Hiroshima or Nagasaki. Moreover, although Congress
drafted the statute broadly enough to encompass some veterans who had been officially assigned
to areas outside of Hiroshima and Nagasaki but who nevertheless participated in the occupation
of those cities, it is clear that the statute does not apply the presumption based merely upon the
veteran’s leisure presence in those cities. Thus, any regulation defining this statute must limit
the application of the presumption based upon the following: (1) the type of duty performed
(“participation in . . . the occupation”); and (2) the place where the claimant performed that duty
(“Hiroshima or Nagasaki”).
2. Occupation and § 3.309(d)(3)(vi)
Regulations should be construed so as to harmonize them with the authorizing law.
Talley v. Derwinski, 2 Vet.App. 282, 287 (1992) (citations omitted). The Court will sustain a
regulation that is consistent with the language of the statute and is a plausible interpretation of
that statute. See Winn, 8 Vet.App. at 515 (1996) (citing Chevron, 467 U.S. at 842-43).
Substantial deference is given to the Secretary’s interpretation of a statute. Id. As to the
regulation at issue here, the Secretary interpreted the statutory phrase “occupation of Hiroshima
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and Nagasaki” by a regulation that provides some examples of military functions that would
demonstrate occupation of those cities. Those examples all describe activities that the Court
holds to be consistent with the ordinary meaning of the term occupation as understood to
connote military control of a geographical area. Further, the regulation applies the presumption
to veterans whose duties “were required to perform or support military occupation functions.”
The Secretary’s inclusion of military duties which “support” the occupation is not contrary to
the language of the statute because the statute does not require the veteran to have actually
“occupied” (seized and controlled) Hiroshima or Nagasaki, but rather only to have “participated
in . . . the occupation.”
Moreover, the regulatory limitation of activities to be performed “within 10 miles” of
Hiroshima and Nagasaki is fully consistent with Congress’s drafting the statute as broadly as
possible with regard to occupation forces but still not extending the presumption to all U.S.
soldiers in Japan. Therefore, the Court holds that the Secretary’s interpretation of the statutory
phrase “occupation of Hiroshima and Nagasaki, Japan,” to mean “official military duties . . .
which were required to perform or support military occupation functions” is an interpretation that
is squarely within the meaning of the statute.
3. To be on leave
Webster’s Dictionary provides a relevant definition of “leave” as “permission to be absent
from duty or work, especially such permission given to personnel in the armed services.”
WEBSTER’S NEW WORLD DICTIONARY 769. Simply, if a serviceman is on leave he has permission
to be absent from some military duty. As discussed above, the duty requirement to qualify for
the statutory, and the regulatory, presumption of service connection is the participation in the
occupation of Hiroshima or Nagasaki. Despite the appellant’s argument to the contrary, a
veteran could have been on leave in Hiroshima and Nagasaki and still qualify for the
presumption. This would occur when the veteran was “on leave from,” in other words, had
permission to be absent from, duties that involved the occupation of Hiroshima or Nagasaki.
Thus, the Court notes that both the Secretary’s regulation and the specific statute, section
1112(c), are consistent with the more general statutory line of duty presumption found at section
105(a). Therefore, as a matter of law, the Court holds that a veteran who visited either
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Hiroshima or Nagasaki while on leave from duty not related to the occupation of either city did
not participate in the occupation of those cities as the term occupation is defined either by
statute or by regulation.
C. On Leave in Hiroshima and Nagasaki
A determination that the veteran’s military duties did not require him to participate in
the occupation of Hiroshima of Nagasaki is a finding of fact that this Court reviews under a
“clearly erroneous” standard of review. See Walls, 5 Vet.App. at 50. Under this standard of review,
if there is a plausible basis in the record for the factual determinations of the BVA, the Court cannot
overturn them. Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). Here, there is no dispute that the
appellant visited both Hiroshima and Nagasaki exclusively while on weekend leave. The
appellant’s duty, from which he had permission to be absent, was service in the 90th NCB. As
found by the DNA and the BVA, the 90th NCB was stationed in Yokoska, hundreds of miles
from either Hiroshima or Nagasaki. Further, there is no dispute that the appellant’s duties with
the 90th NCB did not require him to participate in the occupation, as defined by the statute and
interpreted by the regulation, of either Hiroshima or Nagasaki. Accordingly, there is a plausible
basis in the record for the BVA’s finding that the appellant’s official military duties did not
require him to participate in the occupation of either Hiroshima or Nagasaki. Since his duties
do not qualify under the statute and regulation, his visiting those cities while being on leave
from those duties also does not trigger the presumption. Consequently, the BVA’s
determination that the appellant’s military duties did not entitle him to presumptive service
connection for his cancers was not error.
III. CONCLUSION
The November 27, 1995, decision of the Board is AFFIRMED.