Citation Nr: 1015335 Decision Date: 04/27/10 Archive Date: 05/06/10 DOCKET NO. 06-18 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death, claimed as due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and her daughters ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The appellant is the surviving spouse of the Veteran who is reported to have had active service from December 1950 to December 1954. The record reflects that the Veteran died in August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In September 2007, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. The case has previously been remanded by the Board for evidentiary and procedural considerations. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The death certificate indicates the immediate cause of death as acute leukemia and another significant condition contributing to death as coronary artery disease (CAD). 2. There is evidence that the Veteran's unit participated in operation BUSTER-JANGLE at the time the Veteran was attached to the unit at Nellis Air Force Base (NAFB). 3. Giving the Veteran the benefit of the doubt, the Board will conclude that the Veteran participated in Operation BUSTER-JANGLE, and that the appellant is therefore entitled to application of the presumptive provisions of 38 C.F.R. § 3.311 with respect to the Veteran's leukemia. 4. The death of the Veteran was causally related to service- connected disability. CONCLUSION OF LAW A disability incurred in service contributed substantially to cause the Veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.309(d), 3.311, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background As a result of the Board's decision to grant entitlement to service connection for cause of the Veteran's death, any failure on the part of VA to notify and/or develop the claim pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009) (VCAA) cannot be considered prejudicial to the appellant. The Board will therefore proceed to a review of the claim on the merits. The appellant contends that the Veteran developed leukemia and heart disease which were related to service. She testified that during military service the Veteran was stationed at NAFB in Nevada, and that he was part of a group which was bused out to observe atomic testing. She further contends that fallout from such testing affected the Veteran as the base was located just downwind from the atomic test site. In a radiation risk activity sheet dated in May 2004, the Veteran stated that he was exposed to radiation while stationed at NAFB between 1951 and 1952. He stated that he did not know the coordinates to show his relationship to ground zero, but that he could clearly observe the bright light at detonation. He indicated that badges were turned in to the organization. He further stated that he was not specifically assigned to the projects. He recounted that he was in the open at the time of the explosion, and that he did not move toward ground zero after the explosion. He expressed his belief that his exposure was from fallout. In a separate statement in support of claim, the Veteran reported that after witnessing several of the tests he became ill and was hospitalized. The Veteran's service personnel records reflect that the Veteran was stationed at NAFB with the 3595th Air Base Group from February 1, 1951 to March 8, 1951, the 3595th Supply Squadron and 3595th Maintenance and Supply Group from March 9, 1951 to March 25, 1951, the 3595th Supply Squadron from June 9, 1951 to July 23, 1951, the 3599th Training Squadron from July 24, 1951 to August 9, 1951, and the 3595th Training Group from August 10, 1951 to August 24, 1952 (with records indicating attachment to a unit at the Warren AFB in Wyoming from March 26 to June 8, 1951). A service hospital record dated in September 1951 from NAFB reflects that he was hospitalized for non specific pericarditis and rule out tuberculous pericarditis. A report prepared by the Defense Nuclear Agency reflects that units from NAFB participated in atomic testing at the Nevada Proving Grounds in October and November 1951 called Operation BUSTER-JANGLE. The units included the 3595th Medical Group, the 3596th Air Base Squadron, and the 3599th Training Group. With respect to the identification of these units, as of 1949, additional resources reflect that the Air Force utilized a Wing-Based organizational structure, which included an air base group, a tactical group, a maintenance and supply group, and a medical group. The tactical group was later replaced by a training group. During the period the Veteran was stationed at NAFB, personnel records reflect that the Veteran was assigned to the 3599th Training Squadron from July 24, 1951 to August 9, 1951. At the time of Operation BUSTER-JANGLE in November and December 1951, these records reflect that he was with the 3595th Training Group (August 10, 1951 to August 24, 1952). The Veteran was diagnosed with leukemia in 2003. His death certificate indicates that this disease was the immediate cause of his death in August 2004. In a letter dated in March 2006, a private physician, Thomas B. Wolper, M.D., expressed the opinion that exposure to leukemogenic substances in service was a likely factor in the Veteran's death. As a result of dose estimates based on the Veteran's status of being at NAFB in 1951 rather than any specific test site, Dr. D., the Chief Public Health and Environmental Hazards Office for VA determined in May 2009 that it was unlikely that the Veteran's acute myelogenous leukemia or his CAD was caused by exposure to radiation while in active military service. Based on this and other information, the Director of Compensation and Pension Service concluded that there was no reasonable possibility that either the Veteran's acute myelogenous leukemia or his CAD resulted from exposure to radiation in service. II. Analysis Service connection may be granted for any disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Service connection for a disability that is claimed to be attributable to exposure to radiation during service may be established in one of three ways. See Davis v. Brown, 10 Vet. App. 209 (1997) and Rucker v. Brown, 10 Vet. App. 67 (1997). First, there are a number of enumerated diseases that are presumptively service connected at any time after service if the claimant establishes status as a "radiation- exposed veteran" as defined by 38 U.S.C.A. § 1112(c) (West 2002) and 38 C.F.R. § 3.309(d) (2009). Second, claims based on exposure to ionizing radiation may be service connected under 38 C.F.R. § 3.311 (2009). Third, service connection is warranted under 38 C.F.R. § 3.303(d) (2009) if it is established that a disease diagnosed after discharge is the result of exposure to radiation during active service. Combee v. Brown, 34 F.3d 1039 (1994). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as either a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to include onsite participation in a test involving the atmospheric detonation of a nuclear device, and the term "onsite participation" is defined to include presence at the test site during Operation BUSTER-JANGLE during the period of October 22, 1951 to December 20, 1951. See 38 C.F.R. § 3.309(d)(3)(iii) and (iv) (F) (2009). Additionally, to establish service connection for the cause of the Veteran's death, the evidence must indicate that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. First, the record clearly reflects that the Veteran had acute leukemia at the time of his death and that this condition is listed among those diseases found to be specific to radiation exposed veterans under 38 C.F.R. § 3.309(d) and 38 C.F.R. § 3.311(b)(2)(i). The Board is cognizant of the expert opinions finding that the Veteran's dosage of radiation exposure to be too little to be causally related to the Veteran's development of leukemia and CAD. The opinions of the Director of Compensation and Pension Service and Dr. D. are based on actual dosages relating to the Veteran's stay at NAFB in 1951. On the other hand, although Dr. Woliver opines that the Veteran's exposure to leukemogenic substances while in the military was a likely factor in his development of the disease, he does not indicate the assumptions he made regarding the level of exposure or provide a rationale for his opinion. Thus, even though the Board finds that the Veteran died at least in part from a condition listed under 38 C.F.R. § 3.311, service connection for leukemia and, in turn, the cause of the Veteran's death would not be warranted under that regulation. However, as noted above, if the Board were to find that there is sufficient evidence to conclude that the Veteran participated in Operation BUSTER-JANGLE, service connection for his acute leukemia would be presumed under 38 C.F.R. § 3.309(d). In this regard, the Board note that it clearly recognizes that from a highly technical standpoint, the Defense Nuclear Agency information that the Board has discovered only places one of the Veteran's units as a participant in Operation BUSTER-JANGLE (3599th Training Group), and that service personnel records indicate that the Veteran was not attached to that unit after August 9, 1951. Given the fluid organizational structure of the Air Force at that time, the fact that the Veteran was a member of one of the units at BUSTER-JANGLE just a few months prior to the first detonation, and continued to be stationed at NAFB with the 3595th Training Group during the operation in question, and the fact that the participants were issued badges as described by the Veteran and there is otherwise no evidence to directly dispute the assertions regarding the Veteran's participation in such an exercise, the Board will give the appellant the benefit of the doubt, and conclude that the Veteran was a participant in Operation BUSTER-JANGLE while stationed at NAFB in 1951. The Board further notes that in the event that it had determined that there was inadequate proof of such participation, since this aspect of the claim had not yet been developed, it would have been necessary to remand the case for yet additional development with respect to the Veteran's participation in this operation and Operation TUMBLER-SNAPPER, conducted in Nevada in the spring of 1952. Consequently, since the Board finds that there is sufficient evidence to conclude that the Veteran participated in Operation BUSTER-JANGLE, service connection for his acute leukemia is thereby presumed under 38 C.F.R. § 3.309(d). As the cause of the Veteran's death was acute leukemia, the Board further finds that service connection for the cause of the Veteran's death is also warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs