Citation Nr: 0203869 Decision Date: 04/26/02 Archive Date: 05/02/02 DOCKET NO. 97-05 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for heart disease due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel REMAND The veteran had active service from January 1951 to January 1953. This matter came to the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, in which it denied service connection for heart disease due to exposure to ionizing radiation. The veteran testified at a hearing at the RO before the undersigned Member of the Board in June 1997. In a decision dated in September 1997, the Board denied other claims and remanded the issue of entitlement to service connection for heart disease due to exposure to ionizing radiation to the RO for additional development. The case is now before the Board for further appellate consideration. The veteran contends that his heart disease is due to exposure to ionizing radiation in service, and he has presented competent scientific evidence that heart disease may be induced by ionizing radiation. In conjunction with the Board's prior remand, the RO, in a November 2000 letter, requested that the Defense Threat Reduction Agency (DTRA) provide an updated radiation dose assessment for the veteran, including a dose estimate for the heart and coronary arteries. In a letter to the RO dated in February 2001, DTRA reported that historical records confirmed that the veteran was present at Operation BUSTER-JANGE, an atmospheric nuclear test series conducted at the Nevada Test Site during 1951. DTRA noted that the veteran was assigned to "A" Company, 231st Engineer Construction Battalion at that time. With its letter, DTRA enclosed a copy of the unit history for the 231st Engineer Combat Battalion. In its letter, DTRA stated that a search of dosimetry data revealed no record of radiation exposure for the veteran but that a scientific dose reconstruction indicated that he would have received a probable dose of 2.78 rem gamma. DTRA further stated that a reconstruction report titled Low Level Internal Dose Screen - CONUS Tests (DNA-TR-85-317) addressed the internal exposure of the veteran's unit based on unit activities. DTRA said that application of the report's methodology to the heart/coronary arteries indicated that the veteran's (50- year) committed dose equivalent was 0.2 rem. Morning reports show that the veteran was in Company A of the 231st Engineer Combat Battalion. The unit history for the 231st Engineer Combat Battalion provided by DTRA states that three days before a shot, the battalion was responsible for setting up equipment displays so that observers could witness the effects of a nuclear detonation on selected items of military equipment. After the shot, the engineers were responsible for clearing the debris and damaged equipment. The unit history discusses troop training and indoctrination exercises conducted at shots DOG, SUGAR and UNCLE. It does not, however, specifically describe the activities and location of Company A throughout the BUSTER-JANGLE series. Throughout the appeal, the veteran has emphasized that his company, Company A, was stationed in a forward area throughout BUSTER-JANGLE, and he maintains that because of his location and activities he was exposed to more radiation, both externally and internally, than is reflected by the DTRA dose estimates. He, in effect, asserts that the unit history relied on by DTRA does not include a report of all of his company's activities. In support of his position, he has submitted statements from fellow servicemen who corroborate his contentions that the unit history furnished by DTRA does not provide a full description of Company A's location and activities. He has also submitted a copy of a September 2000 article that discusses the construction of Camp Desert Rock by the 231st Engineer Combat Battalion and its presence at the BUSTER-JANGLE test series. The author describes the article as one of a series of historical articles published as part of the observance of the 50th anniversary of the Nevada Test Site. The article includes a diagram that shows the 231st Engineer Combat Battalion located at Camp Dessert Rock and shows the Company A bivouac area relative to the shot locations, airstrip, control point, Camp Mercury and Camp Desert Rock. The location of the Company A bivouac area shown in the diagram is in a forward area consistent with the descriptions provided by the veteran and fellow servicemen. For atmospheric nuclear weapons test participation claims, 38 C.F.R. § 3.311(a)(4) provides that if military records do not establish presence at or absence from a site at which exposure to radiation is claimed to have occurred, the veteran's presence at the site will be conceded, and the veteran may not be required to produce evidence substantiating exposure if the information in the veteran's service records or other records maintained by the Department of Defense is consistent with the claim that the veteran was present where and when the claimed exposure occurred. In this case, the veteran contends he and others of his company were stationed in a forward area throughout the BUSTER-JANGLE series and that they participated in placing items at designated positions around ground zero for each shot and participated in clearing debris and damaged equipment after each shot. He contends that Company A's activities in this regard and its forward bivouac area location were not limited to shots DOG, SUGAR, and UNCLE. Morning reports and the battalion history do not establish the veteran's presence at or absence from the Company A bivouac area. As the battalion's activities were consistent with the veteran's presence in the Company A bivouac area as described by the veteran and his fellow servicemen, the veteran's presence there and their activities as claimed throughout the period from September 14, 1951, through December 5, 1951, will be conceded. In view of the foregoing, the claim must be remanded so that a new radiation dose estimate for the heart/coronary arteries may be obtained by the RO. The veteran also maintains, through a written statement by William J. Brady, that parameters employed in the methodology used by DTRA to obtain an internal radiation dose for the heart/coronary arteries result in unrealistically low calculated internal doses. In this regard, DTRA has stated that it used the methodology of a reconstruction report titled Low Level Internal Dose Screen - CONUS Tests (DNA-TR- 317) (dated in December 1986) to calculate the radiation dose for the veteran's heart/coronary arteries. In a written presentation to the U.S. Senate Veterans Affairs Committee, Mr. Brady discussed the internal dose screen report used by DTRA and stated that parameters for the dose screen calculations were set at artificially low levels. He observed that the breathing rate used in the internal dose screen report was 1.3 cubic meters per hour and that this was a light exertion rate as used for a laboratory worker example in the National Council on Radiation Protection and Measurements Report 125, Deposition, Retention and Dosimetry of Radioactive Substances, February 1997. He noted that the same source indicated that a heavy exertion rate is 3.6 cubic meters per hour and advised that a more reasonable breathing rate for marching or maneuvering troops was 2.4 cubic meters per hour. He said that this alone would result in almost doubling calculated internal doses. Mr. Brady also pointed out that the internal dose screen used one part in 100,000 of radioactivity on the ground being resuspended to be breathed by observers and maneuver troops touring display areas after a shot, on foot or inside vehicles, ground assaults, trucking etc. He pointed out that for a 1953 shot at Frenchman Flat on the Nevada Test Site the internal dose screen used one part in 100 of radioactivity resuspeded for troops because there was of a dust storm on Frenchman Flat at the time. He stated that the total resuspension factor should be 1.25 parts resuspended per 100 parts radioactivity on the ground for all tests. He explained that this reflects that the blast wave and winds accompanying it after an atmospheric detonation at the Nevada Test Sited resuspended much more dust than a simple dust storm. He stated that this resuspension factor for all tests would increase calculated internal doses by more than 1,000 times in addition to the doubling based on the use of increased breathing rates. In his April 1998 written statement to the U.S. Senate Veterans Affairs Committee, Mr. Brady described himself as a health physicist specializing in personnel radiation dosimetry and stated that he had been responsible for radiation dosimetry at the Nevada Test Site and designed the film badge dosimeter worn for 26 years at the Nevada Test Site. He stated that he also helped institute a dosimetry research project for the Department of Energy and attended nearly all of the Nuclear Test Personnel Review meetings, usually monthly, over a period of 12 years. It appears that acceptance of the statements by Mr. Brady concerning values for breathing rates and resuspension factors would result in a substantially higher value than the 50-year committed dose equivalent of 0.2 rem calculated by DTRA for internal radiation exposure to the veteran's heart/coronary arteries. The Board notes that under the provisions of 38 C.F.R. § 3.311(a)(3) when it is necessary to reconcile a material difference between a radiation dose estimate submitted by a credible source by or on behalf of a veteran and a dose estimate derived from official military records, the estimates and supporting documentation are to be referred to an independent expert for preparation of a separate radiation dose estimate for consideration in adjudication of the claim. As the veteran, in his argument and submission of Mr. Brady's statement, may be attempting to submit a radiation dose estimate, he should be informed that under 38 C.F.R. § 3.311(a)(3) a dose estimate submitted by or on behalf of a claimant shall be considered to be from a "credible source" if it is prepared by a person or persons certified by an appropriate professional body in the field of health physics, nuclear medicine or radiology and the dose estimate is based on analysis of the facts and circumstances of the particular claim. The same regulation provides that the difference between the claimant's estimate and dose data derived from official military records shall ordinarily be considered material if one estimate is at least double the other estimate. The RO should inform the veteran of the provisions of 38 C.F.R. § 3.311(a)(3) and advise him any additional information he must provide to be considered to have submitted a radiation dose estimate from a "credible source" for VA purposes. To ensure that VA has met its duty to assist the appellant in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and inform him of the provisions of 38 C.F.R. § 3.311, to include 38 C.F.R. § 3.311(a)(3) pertaining to submission of a radiation dose estimate by or on behalf of a claimant. The RO should advise the veteran of information he must provide to be considered to have submitted a radiation dose estimate from a "credible source" for VA purposes. The RO should invite the veteran to submit a radiation dose estimate if he wishes to do so. 2. In any event, the RO should request that DTRA provide a radiation dose estimate for the veteran's heart/coronary arteries based on the location and activities of Company A of the 231st Engineer Combat Battalion throughout the entire period of the BUSTER-JANGLE series as described by the veteran and 2 other servicemen in his battalion. This is to include consideration of their descriptions of activities of Company A with respect to all shots, that is, shots ABLE, BAKER, CHARLIE and EASY as well as the shots that were part of Exercises Desert Rock I, II and III, that is, shots DOG, SUGAR and UNCLE. The RO should provide DTRA with copies of the statements from the fellow servicemen who discuss Company A, that is, the April 1992 statement from M.W.B. to the widow of another veteran (who was also in Company A) and the July 1993 statement from R.J.S. In addition, the RO should provide DTRA with a copy of the veteran's VA Forms 21- 4138 dated in March 1980 and November 2000 as well as a copy of the September 2000 article concerning Camp Desert Rock and the BUSTER-JANGLE series with its diagram showing the location of the Company A bivouac area. DTRA should be requested to explain the applicability of the reconstruction report titled Low Level Internal Dose Screen - CONUS Tests (DNA- TR-85-317) to the activities of Company A as described by the veteran and his fellow servicemen as compared with the report's applicability to unit activities as described in the unit history previously relied upon by DTRA. If DTRA uses the internal dose screen report methodology to calculate exposure for the veteran's heart/coronary arteries, it should specify the breathing rates and resuspension factors used and explain the rationale for the values used with reference to the servicemen's assertions concerning their level of physical activity and prevailing conditions, such as the statement that one of the end tents of Company A was blown down by concussion from one of the shots. 3. After a new radiation dose estimate for the heart/coronary arteries has been obtained from DTRA, the RO should proceed with appropriate action to further develop the veteran's claim pursuant to the provisions of 38 C.F.R. § 3.311, to include consideration of any dose estimate submitted by or on behalf of the veteran. 3. The RO must then review the claims file and ensure that all requested development has been completed. The RO must also ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 1991 & Supp. 2001) has been fully complied with and satisfied. See also 66 Fed. Reg. 45620-32 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159). 4. Thereafter, the RO should readjudicate this claim. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence, including all evidence added to the record since the last SSOC. The SSOC should also contain notice of the applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified by the RO. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Robert E. Sullivan Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2001).