Citation Nr: 0413276 Decision Date: 05/24/04 Archive Date: 06/02/04 DOCKET NO. 93-22 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for arteriosclerotic heart disease due to exposure to ionizing radiation. 2. Entitlement to service connection for diabetes mellitus due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Sandra Jackson, Attorney at Law WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The appellant served on active duty from January 1952 to November 1955. This matter originates from a March 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, that denied claims for service connection for arteriosclerotic heart disease and diabetes mellitus due to exposure to ionizing radiation. The United States Court of Appeals for Veteran's Claims (CAVC) has vacated and remanded two previous Board decisions in this matter. The Board last remanded this case to the RO in August 2001 for further development. FINDINGS OF FACT 1. The appellant's claim of participation in atmospheric weapons testing at Shot ENCORE during Operation UPSHOT- KNOTHOLE in May 1953 is not credible, and the preponderance of the evidence demonstrates that he was not exposed to ionizing radiation during active military service. 2. The appellant's arteriosclerotic heart disease and diabetes mellitus were first manifested many years following his separation from active service, and there is no competent evidence linking such diseases to event(s) in active service. CONCLUSIONS OF LAW 1. Arteriosclerotic heart disease was not incurred in service, and may not be presumed to be so incurred. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5107 (West 2002); 38 C.F.R. §§ 3.309, 3.311 (2003). 2. Diabetes mellitus was not incurred in service, and may not be presumed to be so incurred. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5107 (West 2002); 38 C.F.R. §§ 3.309, 3.311 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to assist and provide notice The appellant claims entitlement to service connection for arteriosclerotic heart disease and diabetes mellitus as related to a claimed exposure to ionizing radiation in service. Initially, the Board notes that the provisions of the Veteran's Claims Assistance Act of 2000 (VCAA) are applicable to the claims on appeal. Among other things, the VCAA provisions expanded VA's notice and duty to assist requirements in the development of a claim. See 38 U.S.C. §§ 5102, 5103, 5103A, and 5107 (West 2002). VA has enacted regulations to implement the provisions of the VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2003). The CAVC has emphasized that the provisions of the VCAA impose new notice requirements on the part of VA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, VA has a duty to notify a claimant (and his/her representative) of any information, whether medical or lay evidence or otherwise, not previously provided to VA that is necessary to substantiate a claim. 38 U.S.C.A. § 5103 (West 2002). As part of that notice, VA shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, VA will attempt to obtain on behalf of the claimant. Id. The CAVC's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004) held, in part, that a VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim.". This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). The Board is bound by its General Counsel's opinion that the "fourth element" statement from the CAVC is obiter dictum and not binding on VA. VAOPGCPREC 1-2004 (Feb. 24, 2004). The Pellegrini Court also held that a section 5103 notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the initial AOJ decision was rendered in March 1993 which is many years prior to enactment of the VCAA on November 9, 2000. The claims on appeal have been subject to two Board decisions denying the claims that have been vacated by the CAVC for further development deemed necessary to substantiate the claims. The appellant and his representative, by statements, arguments and court pleadings of record, do not allege that either his arteriosclerotic heart disease or diabetes mellitus were first manifested in service or within the one-year presumptive period. However, the RO has provided the appellant a VCAA notice, dated August 2002, of the types of evidence and/or information necessary to substantiate such a claim as well as the relative duties on the part of the veteran and VA in developing his claim. Rather, the claims are solely based on the assertion that such diseases result from in-service exposure to ionizing radiation. The appellant has submitted competent evidence to establish that arteriosclerotic heart disease and diabetes mellitus may be considered radiogenic in nature. The dispositive issue on appeal concerns whether the appellant can establish his exposure to ionizing radiation in service and, specifically, his claimed participation in atmospheric weapons testing at Shot ENCORE of the UPSHOT-KNOTHOLE series in May 1953. In addition to the multiple communications of file, a July 8, 1998 RO letter notified the appellant of the types of evidence and/or information not currently associated with the claims folder that was then deemed necessary to substantiate the claims as follows: In our letter of June 19, 1998, we invited you to present any other evidence which would establish the veteran's presence at the nuclear test UPSHOT-KNOTHOLE. Specifically, please provide any or all of the following types of evidence: ? Legible copies of Air Force Morning Reports. ? Temporary Duty Orders that would place the veteran at the test. ? Personnel Rosters that would place the veteran at the test. ? Security listings that would place the veteran at the test. ? Any other evidence. If you do not have any of these types of evidence to present, we ask that you write us with a negative response. By means of a Board remand order dated August 2001, the appellant and his representative were notified that VA would conduct additional development with the Defense Threat Reduction Agency (DTRA) (previously known as the Defense Nuclear Agency (DNA) and the Defense Special Weapons Agency (DSWA) to research his claim that he participated in the tests with "Lt. Kunkel" and "Hightower" as well as obtain an interpretation of a morning report entry which he claimed established his Temporary Duty (TDY) orders to Shot ENCORE. An August 2002 RO letter notified the appellant of the VCAA provisions and the relative duties of himself and VA in developing his claims. The notices of record clearly comply with the content requirements of both 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b)(1). Incidentally, the July 8, 1998 letter also complies with the "4th element" component of 38 C.F.R. § 3.159(b)(1) identified by the Pellegrini Court. Technically, the Board concedes that the VCAA notice in this case was not provided to the appellant prior to the initial AOJ adjudication denying the claims. This is so because of impossibility; the section 5103 provisions did not become law until after the initial AOJ decision. As such, VA took a reasonable approach of providing a section 5103 notice in a commonsense manner consistent with the procedural posture of the case; a rule of construction adopted by the United States Supreme Court in similar cases where procedural rules are applied retroactively. See Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994); Lindh v. Murphy, 512 U.S. 320, 328- 29 (1997). The majority in the Pellegrini decision intimated that failure to provide the notice until after a claimant has already received an initial unfavorable AOJ determination, i.e., a denial of the claim, would per se constitute harmful error by nullifying the purpose of the notice in forcing a claimant overcome an adverse decision and by substantially impairing the orderly sequence of claims development and adjudication. Pellegrini, 17 Vet. App. at 421-22. This form over substance interpretation by CAVC would literally require the Board, at this point, to vacate all prior adjudications and remand this claim to the RO to start the claims process anew. This majority viewpoint contradicts a decision by the United States Court of Appeals for the Federal Circuit which counseled against this form over substance approach by holding, as a matter of law, that a case by case analysis is required to determine whether prejudicial error occurred as a result of a section 5103 deficiency. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). For the reasons cited above, VA is pursuing further judicial review on this matter. In fact, as noted by the dissenting opinion in the Pellegrini case, this aspect of the Pellegrini decision is most probably dicta language having no precedential effect on VA. However, assuming solely for the sake of argument and without conceding the correctness of Pellegrini, the Board finds that any defect with respect to the VCAA notice requirement in this case was harmless error for the reasons specified below. In reviewing the claims on appeal, the Board is required to review the evidence of record on a de novo basis and without providing any deference to the AOJ's determinations of fact. The benefit of the doubt rule applies to all questions of material fact. 38 U.S.C.A. § 5107(b) (West 2002). The Board proceeds in this case without regard to the RO's jurisdictional findings. Jackson v. Principi, 265 F. 3d. 1366, 1370 (Fed. Cir. 2001). All previous RO determinations are subsumed by the Board's decision as the Board is the single and sole decision maker of the Secretary in the matter under consideration. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1104 (2003). Quite simply, there is no "adverse determination," as discussed by the Court in Pellegrini, for this appellant to overcome before the Board. See Pelegrini, 17 Vet. App. at 421. There is also no question the appellant has been provided with every opportunity to submit evidence and argument in support of his claims, and more importantly has been provided ample opportunity to submit any type of evidence on the dispositive issue on appeal with the active assistance of his attorney. To the contrary, a blind adherence to the Pellegrini decision would further delay adjudication of the claims which have been pending for more than a decade, and deprive the appellant of his right to timely seek redress before a court of superior jurisdiction, if he deemed appropriate. This aspect of the claims is essential as the appellant and his counsel largely argue that VA is committing an error of law by not conceding his presence at Shot ENCORE per 38 C.F.R. § 3.311(a)(4). The delay for readjudication would be substantial since there are thousands of pending claims involving "post-adjudicatory" notices which, if all summarily remanded, would add to the backlog of cases to be adjudicated by VA and increase the "wait in line" by this appellant, as well as all other VA claimants, in the adjudication of the claims. A literal reading of the Pellegrini case would be an untoward result in this case based upon an unreasonable construction of section 5103, particularly since the appellant's attorney has noted that "[t]his matter has been protracted and [the] veteran should not be required to wait any longer for the benefits to which he is entitled." Quite simply, there is no basis for concluding that harmful error has occurred to this appellant because he received his VCAA notice after an initial adverse AOJ adjudication. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). See also 38 C.F.R. § 20.1102 (2003) (Board decision will not be overturned where harmless error has occurred). The provisions of 38 U.S.C.A. § 5103A require VA to provide assistance to the appellant in the development of the claims. In this case, the RO has obtained the appellant's service medical records. The RO has also undertaken exhaustive efforts with DTRA to corroborate the veteran's claimed presence at Shot ENCORE, to include obtaining morning reports, personnel records, researching his claimed participating servicemates, obtaining an interpretation of a controversial notation on his morning reports, and attaching for the record voluminous DNA publications documenting the events and activities of military personnel at Shot ENCORE. The Board notes that a recent report by the National Research Council, entitled A Review of the Dose Reconstruction Program of the Defense Threat Reduction Agency 2003, has found flaws in the methodology used by DTRA in calculating probable radiation doses, but this report has no bearing on the case absent evidence the appellant was exposed to radiation in service. It is clear from the record that no further service records exist. The RO has no duty to comply with the attorney's June 1997 request to provide dosage and disease information of other veteran's at UPSHOT-KNOTHOLE as such information is not relevant to the dispositive issue on appeal. See Brewer v. West, 11 Vet. App. 228, 236 (1998); Meyer v. Brown, 9 Vet. App. 425, 430 (1996) (there is no duty to assist in a case where the resulting evidence would not provide the requisite evidence to substantiate the claim). All medical records identified by the appellant as relevant to his claim on appeal have been obtained and the appellant has supplemented the record with treatise material. There are no outstanding requests to obtain any other evidence and/or information that is identified, available and relevant. The CAVC has concluded that the VCAA does not require a remand where a claimant was fully notified and aware of the type(s) of evidence required to substantiate the claim and that no additional assistance would aid in further developing a claim. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). When, as here, it is evident that there is no reasonable possibility that any further assistance would aid the appellant in substantiating his claims, the VCAA does not require further assistance. Wensch v. Principi, 15 Vet App 362 (2001); Dela Cruz; see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). II. Factual Summary The appellant contends that his arteriosclerotic heart disease and diabetes mellitus are etiologically related to a claimed exposure to ionizing radiation in service. Essentially, he contends that he participated in an atmospheric nuclear weapons test conducted at the Nevada Proving Grounds (NPG) on May 8, 1953. His initial statement of record, which consists of his 1986 response to a VA radiation exposure questionnaire, claims that he was sent by TDY orders to NPG in the spring or early summer of 1953 to participate in Operation UPSHOT-KNOTHOLE. At that time, he was assigned to the 6580th Air Support Squadron at Holloman Air Force Base (AFB) in New Mexico. He did not recall being issued a film badge during observation of the atmospheric test. He was unsure of the names of other serviceman who participated, but he gave a response "[I] [b]elieve one fellow - By the name of Hightower. I believe one pilot was a Lt. Kunkel." At that time, he described the events as follows: After arriving at the Nevada Testing Facility, Our group attended briefing sessions, telling us what was expected and what and where we go and do. The morning of the blast, we arrived at the trenches before daybreak. We were in the trenches only a short time before the blast. At the time of the blast, we were crouched down in the trenches. The light was so bright there was no shadows. It was a very white light. After the blast we were allowed to raise up look at the mushroom cloud, the Mushroom was beautiful. It had every color of the spectrum. A short time later I could see heat waves coming toward us, pushing dust in front of it. When the heat waves and dust passed over us it became very warm in the trenches. After witnessing the blast we returned to the area where the aircraft came in from flying through the cloud gathering samples. People in white protective clothes removed the filters from the aircraft, then we hosed down the aircraft. [T]he pilot was removed from the aircraft VIA a forklift. After that we washed the aircraft down completely. [W]hen the aircraft was took care of and moved to a holding area. [W]e were took to a decontamination area. People in white protective clothes ran a machine (I [l]earned later was a Gieger counter) over me. I was told the machine would click if contaminated. The machine cli[c]ked so fast it sounded more like a buzz. I removed my clothes and gave them to the people in white. I was instructed to take a shower in the tent which had showers on both sides spraying towards the center, I was told to pay particular attention to my hair, under arms and my p[r]ivate parts. After the shower they ran the machine over me again, it did not click. [T]hey sprayed a letter D on the back of my fatigues. After that we sent the aircraft off for home. We departed for home base with instructions to tell no one about our mission. The appellant's testimony before the RO in August 1986 clarified that the actual test date that he attended was May 8, 1953. He was sent to NPG as an "observer" and attended indoctrination at Camp Desert Rock. After observing the detonation, he was taken to the forward area to observe the blast effects. He then "went back and sent the airplanes off" to perform cloud sampling missions. When the planes came in, he assisted in hosing down the aircraft before the pilot departed. The pilot departed stepping onto a platform supported by a forklift, and then the airplane was again hosed down from top to bottom. He was not provided any protective equipment for these duties, but the men who took samples had been wearing protective clothing. He described the explosion as a beautiful fireball which sent shock waves after the explosion. In testifying, he extensively referred to DNA Publication 6014F in an effort to confirm his version of events prior to and during Operation UPSHOT-KNOTHOLE, to include the documented facts that forward observers were placed in trenches to witness the test, that troop orientations were given prior to the test, that aircraft were decontaminated and that pilots departed the planes by forklifts. He also cited literature which indicated that even low levels of ionizing radiation exposure were considered unsafe, and believed that his early loss of hair was a manifestation of radiation sickness. He also felt that physical problems manifested by his children resulted from his in-service radiation exposure. He emphasized that he had been duty bound to keep secret that he participated in the atmospheric weapons test until the Department of Defense (DoD) requested participants to come forward in a 1979 television commercial. The appellant's testimony before the RO in July 1993 included additional details that his military occupational specialty (MOS) was as an aircraft mechanic on two types of experimental aircraft. He indicated that he volunteered for his TDY assignment at NPG, and reiterated the details of his experience. He indicated that, after the explosion, the U.S. Air Force guys "took us back to the lines to the landing strip where the aircraft was going to fly out and fly through the clouds." He recalled how the airplanes had special filters built into their wingtips. He hosed down the planes when they returned, and was then taken to a decontamination area by pickup where he recalled the buzzing sound of the Geiger counter. He also recalled that, not too long after the test, he had an instance of flu-like symptoms while serving in Germany which he believed may have been a form of radiation sickness. He was unaware of any specific health effects due to his radiation exposure until he suffered two heart attacks in the 1970's. He was first diagnosed with diabetes mellitus in 1978. He again referred to treatise articles indicating that his heart disease may be etiologically related to ionizing radiation exposure. The appellant gave similar testimony before the Board in September 1993. Additional details of importance includes his recollection of events following his tour of the forward area post-explosion as follows: They then took some of us guys that was going to be taking care of the aircraft, sending them off and bringing them in, they took us back to the aircraft area. We sent the aircraft off which they had filters built on, special filters on the wings where they could go through the cloud, get a cloud sample, and bring them back. When they landed, there were some scientists, I had presumed they were scientists, they were covered in white from the top of their head to the bottom of their feet and they were all protected, they went out and took the filters out of the engine and kept to the aircraft tip tanks and put those in boxes. And they went off through there. Then came our job again. Now the pilot remained in his cockpit, with the cockpit closed until we washed that aircraft down once with water. Then he raised the canopy, opened it and got out, but there was a fork lift came up beside the aircraft, raised up in platform order, and that pilot stood straight up carefully, never to touch the side of the aircraft, stood straight up, stepped over the side onto that platform and then he was lowered away and they took him away to decontamination. Then our job went on again. We had to wash that aircraft and when we talked about washing an aircraft, we done, we were more particular with them aircraft then any aircraft that I washed after that, that was just normal flights. Because they told us to make sure we hose out the wheel wells, everything crevice where it could possibly be, where any dust could settle, they wanted it all out of there. After we finished with the aircraft, the different aircraft, after the cloud samples of that day, then they took us to decontamination. The appellant's personnel records provided by the DTRA in September 1998 include his Department of Defense Form 214 which confirms that he served on active duty from January 1952 to November 1955 with training in "A&E Mech[anics]." His "Airman Military Record" indicates an MOS of Aircraft "Acft" Mechanic. He obtained a secret security clearance in December 1952. In pertinent part, he was assigned to the 6580 Air Support Squadron at Holloman AFB from November 1952 to March 1954. A March 6, 1953 morning report includes a somewhat illegible reference, on the last line of the "REMARKS SECTION - DUTY STATUS (TABLE H), of "xxD REPT ATCH for 6 Mar 53" ("x" representing illegible reference). The clearest copy of a May 11, 1953 morning report includes another partially illegible reference, in the "STRENGTH RECONCILEMENT TABLE - ASSIGNED PERSONNEL TABLE (TABLE B)," of "xxD RxPT ATCH YES." The document notes that the table was last updated on May 8, 1953. The "REMARKS SECTION, ASSIGNED PERSONNEL (TABLE E)" includes a reference to the appellant as follows: "[THE APPELLANT] AF [SERVICE NUMBER] A3C W RegAF 43151H PP Awarded DAFSC 4315H changed from 43131H per PAM 14 dtd 30 Apr 53 6580th Air Spt Sq this sta eff 30 Apr 53." DTRA indicates that this entry transcribes as follows: AF: Air Force number A3C: Airman Third Class W: White RegA: Regular Air Force DAFC: Duty Air Force Specialty Code PP: Job specialty status Permanent Party 43151H: Aircraft Mechanic 43131H: Apprentice Aircraft Mechanic PAM: Authority for change Personnel Accounting Memorandum There is no reference on this document, or any other document, that the appellant was given TDY orders for NPG. The appellant's service medical records include his entrance examination, dated December 1951, which was negative for any preexisting disease or injury. His clinic records are negative for clinical diagnosis of arteriosclerotic heart disease and/or diabetes mellitus. He had dental work performed on April 29 and May 12 of 1953, but he did not receive any treatment during the pertinent time period of May 6-9 of 1953. There is no record of treatment for radiation sickness or recorded history of exposure to ionizing radiation. His post-service medical records first reflect diagnoses of arteriosclerotic heart disease and diabetes mellitus many years following his separation from service. A document entitled "Fact Sheet," issued by DNA on January 11, 1982, summarizes information contained in DNA publications 6014F and 6018F. DNA Publication 6014F, entitled "OPERATION UPSHOT KNOTHOLE 1953," was published as an unclassified report to the public on January 11, 1982. It was a compilation of information from known government materials involving the UPSHOT-KNOTHOLE testing series. Each branch of the armed services had its own system of recording information, and it was noted that "much material" had either been lost, destroyed or simply not retained. In general, NPG was located in southern Nevada 100 kilometers (1 kilometer = 0.62 miles) northwest of Las Vegas. The original NPG was an area of high desert and mountain terrain of about 1600 square kilometers. Ch. 1.3, p. 36. Its eastern, northern and western boundaries adjoined the Las Vegas Bombing and Gunnery Range which is now the present day site of the Nellis Air Force Range. Id. Shot ENCORE was conducted in Frenchman Flat which was a dry lake encompassing 22 square kilometers on the southeastern part of NPG. Id. Camp Mercury was situated at the Northern Boundary of NPG while Camp Desert Rock was 3 km. southwest of Camp Mercury. Id. at 39. Indian Springs AFB was located about 38 kilometers from Camp Mercury. Ch. 4.4, p. 134. Figure 1-2 shows that Frenchman Lake was slightly more than 10 meters from Camp Desert Rock where exercise troop were assigned for periods of a few days to a few weeks on a temporary-duty basis. This camp housed the support troops who provided security and law enforcement, radiological safety, medical care, transportation, construction, food, and laundry services to troops. Ch. 2, p. 41. The Commander of the Air Force Special Weapons Center (AFSWC) at Kirtland AFB had responsibility for operational control and flight planning of all aircraft and flight planning, and provided the airdrop aircraft, the sampling aircraft, the cloud tracking, terrain survey, courier, security sweep and shuttle aircraft, and supporting elements. Ch. 2, p. 44. AFSWC also provided ground support and air base services at both Kirtland and Indian Springs AFB's. Id. Personnel at Camp Desert Rock consisted of several groups. Support troops were mainly drawn from the 6th Army who conducted activities such as security, transportation, construction, radiological safety, communications, mess and laundry, etc. Ch. 2.2, pp. 61-62. "Desert Rock V" exercise troops, consisting of an estimated 18,000 DoD personnel, were assigned to Camp Desert Rock to participate in specific activities associated with a particular shot such as troop orientation and indoctrination, volunteer officer observation program, tactical troop maneuvers, operational helicopter tests and damage effects evaluation. Id. at 64. Section 3.1, entitled "TROOP ORIENTATION AND INDOCTRINATION AT EXERCISE DESERT ROCK V," includes the following description of participating observers: Army, Navy, Marine Corps, and Air Force observers participated in troop orientation and indoctrination at Operation UPSHOT- KNOTHOLE. The purpose was to familiarize members of the armed services with the effects characteristic of nuclear detonations. Participants witnessed a nuclear event in the forward area of the NPG and, before and after detonation, toured a display of ordnance materiel and other military equipment arrayed in the vicinity of ground zero. The number of Desert Rock observers at each of the test events is depicted by shot and participating service in table 3.1. As the table illustrates, troop orientation and indoctrination were conducted at nine of 11 tests. The orientation and indoctrination activities involved both Camp Desert Rock observers and other service observers. Camp Desert Rock observers were not associated with any particular observer activity but were for the most part assigned to Camp Desert Rock support units. They were sent to the forward area to see a shot, possibly in conjunction with a support activity. The size of this group of observers at any nuclear event varied with participation of other observer and troop maneuver activities. Some Camp Desert Rock support troops may have taken part as observers at more than one nuclear test (120;122-128). Service observers were selected from military bases throughout the United States. These personnel participated solely as observers and received the routine preshot briefings and orientation course presented by the Camp Desert Rock Instructor Group. In some instances, participants from this group observed more than one nuclear test (120; 135). Each service was informed of the reporting and departure date for each shot, as well as the records and equipment to be carried to Camp Desert Rock by individual observers. After arriving at Camp Desert Rock, the observers began a scheduled routine which varied from shot to shot but included a standard set of activities. These activities included preshot classroom instruction in basic nuclear theory, the characteristics and effects of nuclear weapons, protective measures to use against a nuclear attack, and a plan of operations for the upcoming shot. The preshot lectures lasted eight hours. For those observers unable to arrive at Camp Desert Rock in time for this instruction, a one-hour orientation was conducted on the evening before the shot (120; 135). A rehearsal of shot-day activities was conducted in addition to the preshot classroom instruction. This rehearsal involved a visit to the trenches that the observers would occupy on shot-day, a practice of the countdown and activities scheduled for the detonation, and a tour of the display area. In some instances, the observers toured the display area of a previous nuclear test to see the postshot effects (120). About one hour before the scheduled shot, observers arrived at the trench area by truck or bus convoy. There they were told what to expect and were briefed on safety procedures. They then entered the trenches, where they crouched for the final countdown and the shot. Figure 3-1 shows troops in trenches awaiting ANNIE detonation. After some of the shots, they inspected the equipment display area to examine the effects of the burst on animals, equipment, and fortification and shelters. The Desert Rock Control Group supervised this inspection. The service observers and Camp Desert Rock observers probably were located in the same trenches and viewed equipment display areas together (120; 122-128). Various circumstances altered this general routine at some of the shots. In some cases, weather conditions or fallout contamination prevented observers from viewing the display area. In other cases, shot delays resulted in changes to some observer activities (120). Shot ENCORE was conducted on May 8, 1953 at 0830 military time in Area 5 of Frenchman Flat. It was an airdrop test with a burst height of 2,423 feet and yield of 27 kilotons. Table 1.1. Air Force personnel involved included 113 observers and 326 tactical troop maneuvers. Table 3.1. It was unknown how many Air Force personnel were involved with damage effects evaluation. Id. One film badge per bus was issued for observers, and some observers carried pocket dosimeters. Ch. 5.1.3., p. 50. The film badge data for Desert Rock troops were limited in spite of extensive archival searches, and radiation exposures for these troops were derived from reconstructions. Id. The Desert Rock troops wore no protective clothing, but they were required to keep their standard fatigues securely tucked into their boot tops and to keep their sleeves and collars tightly buttoned. Ch. 5.1.4, p. 151. The 50th Chemical Service Platoon operated the main decontamination facility for both personnel and vehicles about 900 meters north of the Control Point at Yucca Pass. Ch. 5.1.6, pp. 153-154. The initial decontamination procedure involved sweeping brushing clothing, equipment and vehicles to remove contaminated dust and debris. The troops received their initial decontamination brushing in an area just outside the 0.02 R/h area before boarding buses for Camp Desert Rock. Id. All gloves and booties were considered contaminated and not monitored. Id. at 171. Personnel were surveyed for radiation levels with MX-5 portable survey instruments in a checkroom. Id. Garments exceeding certain radiation intensities were turned into the Supply Section, and personnel took showers. Repeat showers were warranted for personnel with intensities in excess of 0.002 R/h. Id. Vehicles and equipment were either washed or quarantined until radiation intensities decayed to permissible levels. Id. at 154 and 171. Vehicles with radiation levels exceeding 0.02 R/h were driven into a rock bed at a decontamination station and washed with detergent and water, and weren't returned to service at Camp Desert Rock until the radiation level fell below 0.02 R/h. Id. AFSWC provided support to Shot ENCORE by performing the missions of airdrop delivery, cloud sampling, courier sample return, cloud tracking and aerial survey. Table 4-14. AFSWC was based at Kirtland AFB in Albuquerque, New Mexico, but used Indian Springs AFB as its principal staging area during the testing. Ch. 4.4, p. 134. AFSWC air and ground participants in UPSHOT-KNOTHOLE numbered 400 at Indian Springs AFB and about 2,000 at Kirtland AFB. Cloud sampling was performed by F-84G and B-29 aircraft which departed from Indian Springs AFB. Id. at 137-140. The F-84G's were fitted with air filters in the wing-tip tank to take samples of fission products, and a polyethylene bag located in the nose to take gaseous samples. Id. at 138. The B-29's collected gaseous samples in small cylinders. Both types of planes landed at Indian Springs AFB where the samples were removed and sent promptly by courier aircraft to laboratories. Id. The 4925th Air Base Squadron was in charge of radiological safety for Indian Springs AFB, to include monitoring and decontaminating the aircraft. The 4926th sample-removal crew removed particulate cloud samples from sampler aircraft. AFSWC personnel wore respirators and protective clothing to protect from internal and external exposure. The radiation protocol procedures for Kirtland and Indian Springs AFB's were described as follows: 5.3.3 The primary requirement of the AFSWC radiation protection program was to minimize exposure of AFSWC personnel to radiation. Because exposure to ionizing radiation may be both internal or external, AFSWC developed procedures to minimize both types of exposure. To minimize internal exposure, AFSWC personnel wore respirators when they worked in enclosed spaces or in activities producing airborne contamination, such as the unloading of particulate samples. Aircrews were on full oxygen. For pressurized aircraft, a filter installed on the air intake system collected 99 percent of the radioactive particles one micron or larger in size. To minimize external exposure, participants wore protective clothing over their regulation clothing while in contaminated areas. Upon leaving contaminated areas, personnel removed this protective clothing to reduce the potential for spreading contamination to other areas. During sampling missions, pilots wore lead-glass vests, which reduced radiation exposure by 17 percent. While vests covering the sides and front of the torso were first tested at NANCY, they were not available for all sampler pilots until Shot BADGER (105). Other procedures for limiting the radiation exposure of pilots are discussed in section 4.4. 5.3.4 Monitoring and Decontamination Portable radiation detection instruments were used to measure radioactive contamination on personnel and aircraft at both Kirtland AFB and Indian Springs AFB. The assessment of contamination levels was an important step in establishing restricted areas and in determining whether protective procedures had been successful. To prevent the spread of contamination, and thus reduce personal exposure to radiation, AFSWC developed special contamination control procedures for aircrews, ground crews, and aircraft. Personnel Ground personnel planning to enter contaminated areas obtained anticontamination clothing, film badges, and dosimeters from the Personnel Decontamination Section. Individuals with open breaks in their skin could not enter contaminated areas unless the breaks were covered. The cuffs of the coveralls were closed with masking tape. Upon leaving the contaminated areas, personnel were monitored. If, after removing their anticontamination clothing, they registered radiation intensities greater than 0.007 R/h of gamma radiation, they were decontaminated at the Personnel Decontamination Station (105). Aircraft A special pad was built at Indian Springs AFB for the decontamination of aircraft. The pad was located off an old taxi strip and was in an isolated area about 900 meters east of the regular aircraft parking ramp. The surface of the concrete pad was sealed to minimize penetration of the contaminated water into the concrete. Base water was piped to the decontamination pad and into a leach field in the desert. This leach field, as well as the decontamination pad, was marked with appropriate warning signs, when required. The aircraft were towed to and from the decontamination pad (105). After landing, aircraft taxied to designated areas where they were met by radiological personnel who unloaded the cloud samples (if any) and assisted in removing the crew. The crew went to the Personnel Decontamination Station for monitoring and decontamination. The aircraft were then monitored to determine levels of radioactive contamination. If gamma intensities exceeding 0.007 R/h were found, the aircraft were towed to the decontamination pad. Aircraft were decontaminated by repeated washings with detergent and water or were parked in designated areas, marked with radiation signs, and quarantined until radiation decayed (94). Sampler F-84s, however, could not be decontaminated to the 0.007 R/h limit. At the conclusion of UPSHOT-KNOTHOLE, after flying several missions, the aircraft had residual contamination in the 0.050 to 0.150 R/h range. This resulted primarily from particles impacting the compressor blades of the engine (105). Radiation monitors were present during all phases of decontamination, and decontamination crew members wore anti-contamination clothing, film badges, and pocket dosimeters. DNA Publication 6018F, entitled "SHOTS ENFCORE TO CLIMAX The Final Four Tests of the UPSHOT KNOTHOLE Series 8 May - 4 June 1953," was published as an unclassified report to the public on January 15, 1982. Chapter 2 of this report covers operational activities during Shot ENCORE. The detonation of ENCORE, scheduled for 7 May, was postponed for 24 hours because of adverse winds. Ch. 2, p. 20. An AFSWC B-50 from the 4925th Test Group, based at Kirtland AFB, delivered the ENCORE weapon which detonated at a height of 2,423 feet above Frenchman Flat. Id. Additional details not published in DNA 6014F included the following summary of the observer activities: 2.1.2 Troop Orientation and Indoctrination Activities As table 2-1 indicates, 532 personnel from the four armed services participated as official observers at Shot ENCORE. The 315 observers, including 180 Camp Desert Rock participants, composed the largest contingent. All of the observers took part in the same orientation and training activities for the event. Most reported for duty between 2 and 5 May. On 5 May, the observers present rehearsed their shot-day activities, including an inspection of the display area. After spending about five hours at the test site, they returned to Camp Desert Rock (64). On 6 May, the Instructor Group presented an eight-hour orientation for observers, who viewed films and attended lectures on the characteristics of a nuclear detonation and the procedures to follow during a shot. When ENCORE was postponed for 24 hours, the Instructor Group presented a more detailed eight-hour orientation for observers (64). At 0640 hours on 8 May, the observers left Camp Desert Rock for the trench area, located 9,400 meters from the intended ground zero, at UTM coordinates 924639. After they arrived at about 0705 hours, the Instructor Group conducted the 35-minute preshot orientation. Fifteen minutes before shot-time, the observers were directed to enter the trenches to observe the shot (64). Thirty minutes after the shot, the observers began the 40-minute trip by truck to the display area. They returned to Camp Desert Rock after their tour of the display area, having spent about 5 hours and 20 minutes at the test site (37, 64, 72). The Tactical Air Command (TAC) aircrews operated T-33 aircraft which departed from Indian Springs AFB and returned directly to George AFB following the shot for decontamination. P. 60. The RF-80 aircraft departed and returned from George AFB. Id. AFSWC activities were described as follows: 2.2.4 Air Force Special Weapons Center Activities AFSWC provided operational control of all air activities through the Air Participation Unit. In addition to airdropping the ENCORE device, AFSWC personnel conducted cloud sampling and sample courier missions for the test groups, as well as cloud tracking and aerial surveys of the terrain for the Test Manager. The following listing indicates the types and numbers of aircraft and the estimated numbers of AFSWC aircrew personnel involved in air missions at Shot Encore (51): TITLE TYPE OF AIRCRA FT NUMBER OF AIRCRAFT NUMBER OF PERSONNE L Sampling Sampler F- 84G 8 8 Sampler Control B-50 1 9 Snooper F-84 1 1 Sample Courier C-47 3 9 Missions B-25 1 5 Cloud Tracking B- 25 1 5 B- 29 2 20 Aerial Surveys H-5 1 2 L-20 1 3 C-47 1 4 Airdrop Mission B-50 1 11 In addition to the aircraft listed, two C-47 emergency aircraft, one based at Kirtland AFB and the other at Indian Springs AFB, were available in case the delivery aircraft had problems. These aircraft were not needed at Shot ENCORE (51). Cloud Sampling At ENCORE, eight F-84G aircraft code-named Tiger, each with one pilot from the 4926th Test Squadron, collected particulate and gaseous samples of the ENCORE cloud for LASL Project 13.1, Radiochemistry Sampling, and AFSWP Project 7.5, Calibration and Analysis of Close-in A-Bomb Debris. A B-50 sampler control aircraft, with a crew of nine including LASL scientific advisor, and one F- 84G aircraft surveyed the cloud before the sampling sorties began. The first penetration of the cloud occurred one hour after shot- time. The peak intensity encountered by any sampler was 12 R/h. Each aircraft was called in succession following completion of the preceding sampler mission. The following listing details the activities of each sampler aircraft. Aircraft are listed according to the sequence in which they flew (51). AIRCRAFT (F-84G) NUMBER OF PENETRATI ONS TOTAL TIME IN CLOUD (seconds) TOTAL TIME IN CLOUD AREA (minutes ) Tiger Red 1 2 5 81 Tiger Red 2 1 130 63 Tiger Red 4 2 122 75 Tiger Red 5 3 175 102 Tiger White 1 1 180 73 Tiger White 2 2 290 70 Tiger White 3 1 960 100 Tiger Blue 4 0 0 95 Upon completion of the mission, the samplers returned to Indian Springs AFB and parked in designated areas. Engines were shut down, and the canopies remained closed and sealed until the samples were removed from the aircraft. The pilots remained on full oxygen while they waited. The 4926th sample-removal team and radiological safety monitors removed the samples from each aircraft and placed them in shielded containers. After the samples from each aircraft were removed and stored, the pilot shut down his oxygen and opened the canopy. He then stepped onto a platform held by a forklift so he would not touch the exterior of the aircraft. Then he was placed in pickup truck and taken to the decontamination station for monitoring and decontamination, as necessary (51; 123). Sample Courier Missions After the sampling missions were completed, three C-47 aircraft, each with a crew of three, and one B-25 aircraft, with a crew of five, left Indian Springs AFB on shot-day to transport samples to the AEC nuclear weapons development laboratories and various airbases. The 4901st Support Wing (Atomic) from Kirtland AFB conducted these courier missions. The C- 47's transported samples, animals, and experimental equipment for test group projects, including Project 7.5. The B-25 aircraft flew Project 13.1 filter papers to Kirtland AFB (45). Cloud Tracking Immediately after the ENCORE detonation, one B-25 aircraft from Indian Springs AFB and two B-29s from Kirtland left for cloud-tracking missions over and beyond the NPG. The B-25 had a crew of five, and each B-29 had a crew of ten. The B-25 flew at 12,000 feet and the B-29s at 22,000 feet. The three trackers flew relatively short missions of one to two hours because of the low radiation intensity of the cloud and because one of the B-29s had mechanical problems (39; 51). In its September 1995 dose assessment, DNA had stated that the appellant's service personnel records could not be found at the NPRC as they were presumed to have been destroyed in the fire that occurred there in 1973. A search of alternate records disclosed Air Force morning reports which DNA analyzed as follows: Air Force morning reports reveal that in 1953 [the appellant] was assigned to the 6580th Air Support Squadron, Holloman [AFB] in New Mexico. During the UPSHOT-KNOTHOLE operational period, morning reports show only routine administrative activities, such as ordinary leave, excused duty, and change of Duty Air Force Specialty, for [the appellant]. Morning reports do not indicate that he was sent on temporary duty to the NTS or that he was away from Holloman AFB when Shot ENCORE was detonated. In response to the Board's December 1997 remand, DSWA reported in September 1998 that it had reviewed the appellant's statement and available Air Force unit records and had determined that the conclusion provided in its September 1995 letter regarding the appellant's participation in atmospheric nuclear testing remained current. DSWA found no order, rosters or security listings that placed the appellant at the Nevada Test Site or in support of UPSHOT- KNOTHOLE. In response to the Board's December 1997 remand, DTRA indicated that a search of the Nuclear Test Personnel Review program database showed no Air Force personnel named "Kunkel" or Hightower at Operation UPSHOT-KNOTHOLE. DTRA also provided additional documentation and analysis as previously described on pages 12-13 of this decision. III. Applicable law and regulation Service connection based upon exposure to ionizing radiation may be established under the provisions of 38 C.F.R. § 3.309(d), 38 C.F.R. § 3.311, or on the basis of direct, or in certain cases presumptive, service connection. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). In this case, the appellant has established diagnoses of arteriosclerotic heart disease and diabetes mellitus. For radiation-exposed veteran's, these are not among the diseases for which presumptive service connection is warranted. 38 C.F.R. § 3.309(d) (2003). However, the appellant has provided competent treatise material that such diseases may be radiogenic in origin so as to warrant consideration of whether he is entitled to have VA conduct special development on his behalf. See 38 C.F.R. § 3.311(b) (2003) (VA's initial review of claims will include forwarding the claim to the Under Secretary for Benefits to obtain an etiology opinion from the Under Secretary for Health where a claimant presents evidence of exposure to ionizing radiation in service and competent evidence that the particular disease claimed is radiogenic in nature). See also Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997) (the provisions of 38 C.F.R. § 3.311 do not provide a presumption of service connection but a procedural framework to develop claims). As indicated above, the dispositive issue on appeal concerns whether the appellant can establish his exposure to ionizing radiation in service. He claims to have onsite participation in atmospheric weapons testing for Operation UPSHOT-KNOTHOLE. See 38 C.F.R. § 3.309(d)(3)(v)(I) (2003). In pertinent part, VA regulation includes the following evidentiary burdens with respect to proving exposure to ionizing radiation in atmospheric nuclear weapons test participation claims per 38 C.F.R. § 3.311(a)(4): (i) If military records do not establish presence or absence from a site which exposure to radiation is claimed to have occurred, the veteran's presence at the site will be conceded. (ii) Neither the veteran nor the veteran's survivors may 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. Where a claimant fails to establish exposure to ionizing radiation in service, VA is entitled to discontinue the special development procedures set forth in 38 C.F.R. § 3.311(b). Wandel v. West, 12 Vet. App. 200, 205 (1999). Under the general laws and regulations governing VA compensation entitlement, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active peacetime service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Presumptive service connection may be granted for certain specified chronic diseases if the evidence shows that such disease became manifest to a degree of 10 percent or more within one year from separation from active service, even though there is no evidence of such disease during the period of wartime service. 38 U.S.C.A. §§ 1112, 1133 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2003). Arteriosclerosis and diabetes mellitus are listed among the specified chronic diseases. 38 C.F.R. § 3.309(a) (2003). The claimant bears the burden to present and support a claim of benefits. 38 U.S.C.A. § 5107(a) (West 2002). In evaluating service connection claims, the Board shall consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). VA has defined competency of evidence, pursuant to 38 C.F.R. § 3.159(a), as follows: (1) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. (2) Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. IV. Analysis The appellant claims to have been participated in atmospheric weapons testing at Shot ENCORE of the Operation UPSHOT- KNOTHOLE Series conducted on May 8, 1953. His service medical and personnel records establish his presence at Holloman AFB in and around the first week in May. There is no documentary evidence, such as TDY orders, travel orders, morning reports, registry in the Nuclear Test Personnel Review program database, etc., to support his allegations of a TDY status at Shot ENCORE. Much has been made by the appellant and his counsel of an admittedly partly illegible morning report entry, dated May 11, 1953, which is claimed by them to state "TD REPT ATOM YES." As demonstrated by later copies provided by DTRA, this is a false and meritless argument. The clearest copy of the May 11, 1953 entry shows an "ATCH" rather than an "ATOM" notation. Any doubt to this interpretation is laid to rest when compared to the similar but more legible entry on the May 6, 1953 morning report which reads "xxD REPT ATCH for 6 Mar 53." The DTRA, experienced in reading military records, indicates that this entry indicates that an accompanying report was originally attached to the morning report. Incidentally, the Board independently reached this commonsensical interpretation in its March 1999 decision. The Board finds that the preponderance of the evidence establishes that the May 11, 1953 entry in question, similar to the May 6, 1953 entry, merely indicates that an additional report was originally attached to morning report. Even assuming, arguendo, that the May 11, 1953 entry indeed reads as claimed by the appellant and counsel, such an entry would not establish the appellant's presence at NPG. The entry at issue is found the middle of the report in a section entitled "STRENGTH RECONCILEMENT TABLE - ASSIGNED PERSONNEL TABLE (TABLE B)." This entry, in and of itself, does not refer to the appellant nor establish that he was given TDY orders to participate in Operation UPSHOT-KNOTHOLE. There is a reference to the appellant in the "REMARKS SECTION, ASSIGNED PERSONNEL (TABLE E)" but this only establishes that, on May 11, 1953, he was promoted from apprentice aircraft mechanic to aircraft mechanic effective April 30, 1953. The appellant and his counsel argue that his presence at NPG as claimed should be conceded, by operation of law, per the provisions of 38 C.F.R. § 3.311(a)(4). The Board has strongly considered applying this provision, as well as the benefit of the doubt rule under 38 U.S.C.A. § 5107(b), in favor of the appellant. However, the appellant's description of his participation and claimed event(s) for Shot ENCORE irreconcilably conflict with the known and documented events which took place at Shot ENCORE and do not withstand close scrutiny. Fairly stated, the appellant gives the following timeline of events: (1) that he was given TDY orders to participate in Shot ENCORE as an "observer"; (2) that he arrived at Camp Desert Rock prior to May 8, 1953 wherein he underwent indoctrination and orientation; (3) that he viewed Shot ENCORE from a trench at 08:30 at Frenchman Flat; (4) that he participated in a tour of the forward area; (5) that he was then transported from the test site area to "the airstrip" to help "send off" the cloud sampling aircraft; (6) that he provided an initial decontamination procedure on the sampling aircraft upon landing; (7) that he provided another decontamination procedure on the aircraft once the pilot exited; and (9) that he was finally decontaminated at the airstrip site. The record is clear that observers of Shot ENCORE arrived at 06:40, witnessed Shot ENCORE at 08:30, took a 40-minute round trip to the display area, underwent decontamination by the 50th Chemical Service at Control Point at Yucca pass and, once decontaminated to an intensity level of less than 0.002 R/h, boarded buses back to Camp Desert Rock. This whole process took about 5 hours and 20 minutes, and would have completed around 12:00 hours. DNA documentation indicates that service observers selected from military bases "participated solely as observers," but the appellant claims otherwise. He claims to have participated in the decontamination of aircraft at the "airstrip" which, according to DNA documentation, was solely conducted at Indian Springs AFB located least 38 kilometers from the test site at Frenchman Flat. For the reasons set forth below, the appellant's claim of participation in atmospheric weapons testing at Shot ENCORE during Operation UPSHOT-KNOTHOLE in May 1953 is not credible. First, the Board would have to accept that the appellant was allowed to bypass the decontamination protocol at Yucca Pass and be directly transported 38 kilometers by truck to Indian Springs AFB. This is highly dubious since personnel were not allowed to leave the test site area until a decontamination of at least 0.002 R/h were obtained. It is also questionable that, following detonation of Shot ENCORE and the 40-minute tour of the display area, he would have arrived at Indian Springs AFB in time to watch the sampler aircraft to depart for the missions that first penetrated the clouds one-hour after shot-time. But more troubling, the appellant's description of decontamination duties at Indian Springs AFB are wholly inconsistent with the protocol clearly described in DNA Publication 6018F. First, decontamination of sampling aircraft were conducted by the specially trained 4925th Air Base Squadron crew according to "special decontamination control procedures for aircrews, ground crews and aircraft." It is highly questionable that the appellant would have participated in this activity absent specialized training and, more importantly, being present in a contaminated area without "anticontamination clothing, film badges, and dosimeters" for ground personnel. Second, the appellant claims to have provided sampling aircraft an initial wash down on return from their missions and before the pilots exited and the planes were towed away from the airstrip site. DNA documents establish that the aircraft initially parked in designated areas where the engines were shut down while the pilot remained in a closed canopy with full oxygen to allow the 4946th sample-removal team to remove the samples. Then, the pilot exited onto a platform held by a forklift. Then, the aircraft were monitored for decontamination. If necessary, the aircraft were then towed to a pad, 900 meters east of the regular aircraft parking ramp, that was specially designed to quarantine the radiation runoff into a leach field. The Board finds no credibility to the appellant's assertions that the aircraft were given an initial "washdown" outside the specially designed pad given the strict procedures in place to contain any possible contamination runoff. The argument has been made that the appellant's version of events must be true due to the level of detail he has provided and, allegedly, due to a claimed inability to be privy to such details prior to his first exposure report to VA in 1986. The DNA reports, however, were first published in January 1982 and the Board notes that much of the appellant's 1986 RO hearing testimony was spent with specific referral and cross-reference to DNA publication 6014F. The Board finds no reason, when given the discrepancies above, to assign any probative weight to any argument that the appellant is referring to information and/or evidence that was not readily available at the time of his initial 1986 exposure history. Rather, the Board finds that the details provided by the appellant detract rather than lend credence to his claim of participation in Shot ENCORE. To find in favor of the appellant, the Board would have to accept that the appellant was allowed to violate the radiation protocol procedures on three separate occasions (1) by leaving the Shot ENCORE site without undergoing decontamination at Yucca Pass, (2) by operating as part of the highly trained AFSWC ground crew without being provided protective equipment, and (3) by decontaminating the aircraft prior to its towing to the specially designed decontamination pad. The Board would also have to accept that the appellant's role "solely" as an "observer" was expanded to duties normally assigned to specially trained and permanently stationed personnel, and that he was able to complete the tour of the blast area and arrive at Indian Springs AFB in time to watch the aircraft take off for their missions. As a whole, the Board finds that the appellant's descriptions of event(s) cannot be reconciled with the known and documented event(s) at Shot ENCORE, and lack any indicia of credibility. Therefore, the Board is unable to allow for the application of either 38 U.S.C.A. § 5107(b) and/or 38 C.F.R. § 3.311(a)(4) to establish the appellant's presence at NPG as claimed. Given the holding above, the Board finds no basis in which to find that the appellant's arteriosclerotic heart disease and diabetes mellitus are related to an in-service exposure to radiation. Thus, any further development of the claim under 38 C.F.R. § 3.311(b) is not warranted. Wandel, 12 Vet. App. at 205. The evidence shows, and the appellant does not dispute, that both disease processes first manifested many years following his discharge from active service. There is no competent evidence linking such diseases to event(s) in active service, other than the claimed radiation exposure. In such circumstances, the Board finds that the evidence of record also preponderates against a finding that such diseases were incurred in or aggravated by a period of active service under the general laws governing VA compensation benefits. See Combee v. Principi, 34 F.3d 1039, 1043 (1994). The claims for service connection for arteriosclerotic heart disease and diabetes mellitus are, therefore, denied. The benefit of the doubt rule is not for application. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001) (benefit of doubt rule does not apply when preponderance of evidence is against a claim). ORDER Service connection for arteriosclerotic heart disease due to exposure to ionizing radiation is denied. Service connection for diabetes mellitus due to exposure to ionizing radiation is denied. ____________________________________________ C.W. SYMANSKI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2