Citation Nr: 1304465 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 12-17 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for acute myelogenous leukemia and multiple myeloma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran had service with the Merchant Marines from December 1943 to August 1945, and with the U.S. Army from September 1950 to September 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for acute myelogenous leukemia and multiple myeloma. During the hearing before the undersigned, the Veteran withdrew his claims for service connection for non-Hodgkin's lymphoma and brain lesions. This decision, accordingly, is limited to the issue set forth on the cover page. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran served in a missile unit and participated in Operation Buster-Jangle. 2. He was diagnosed with acute myelogenous leukemia and multiple myeloma in 2010. CONCLUSION OF LAW Acute myelogenous leukemia and multiple myeloma were incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). In light of favorable determination regarding the claim for service connection for acute myelogenous leukemia and multiple myeloma, no further discussion of VCAA compliance is warranted at this time. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996); affirmed at 120 F.3d 1239 (Fed. Cir. 1997). First, there are specific diseases which may be presumptively service-connected if manifest in a radiation-exposed veteran. A radiation-exposed veteran' is defined by 38 C.F.R. § 3.309(d)(3) as 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 mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946; or the Veteran's presence at certain specified additional locations. See 38 C.F.R. § 3.309(d)(3). For tests conducted by the United States, the term operational period means: For Operation Buster-Jangle, the period October 22, 1951 through December 20, 1951. See 38 C.F.R. § 3.309(d)(3)(v) In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. The presumptively service-connected diseases specific to radiation-exposed veterans are the following: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary gland, cancer of the urinary tract, bronchiolo-alveolar carcinoma, cancer of the bone, cancer of the brain, cancer of the colon, cancer of the lung and cancer of the ovary. 38 C.F.R. § 3.309(d)(2). The second avenue of recovery is found under 38 C.F.R. § 3.311(b)(2). This provision provides that certain listed 'radiogenic' diseases found 5 years or more after service in an ionizing-radiation-exposed veteran may be service connected if the VA Undersecretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest in the period specified, the claim will be referred to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the VA Undersecretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the VA Undersecretary of Health. 38 C.F.R. § 3.311(b),(c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). Pursuant to 38 C.F.R. § 3.311(b)(2) , radiogenic diseases include the following: all forms of leukemia except chronic lymphatic (lymphocytic) leukemia, thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2). A disease is also considered a radiogenic disease where competent scientific or medical evidence that the claimed condition is a radiogenic disease is received. See 38 C.F.R. § 3.311(b)(4). Finally, there is a third avenue of recovery in this case. The United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 4, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In order to prevail on the issue of service connection on a direct-incurrence basis there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). In February 2004, the National Personnel Records Center reported the Veteran's service records were presumed to have been destroyed in a fire in 1973 at a storage facility. In cases such as these, the VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim was undertaken with this duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Private medical records have been associated with the claims folder. A bone marrow biopsy in March 2010 shows findings consistent with acute myeloid leukemia. In a statement dated June 2010, a private physician wrote he had been treating the Veteran since March. He noted the Veteran had acute myelogenous leukemia and multiple myeloma. He pointed out the Veteran was deployed to areas of probable exposure to radioactive fallout, as well exposure to rocket fuels used in the guided missile programs. The physician asserted that the Veteran's blood disorders are known to be related to prior exposure to carcinogens, especially when they occur later in life, as in the Veteran's case. He opined that more likely as not, the history of exposure to carcinogens during service was related to the Veteran's cancers. The Board acknowledges that in December 2010, the Defense Threat Reduction Agency (DTRA) indicated that the Veteran was reassigned to duty with "C" battery, 3rd Guided Missile Battalion, 4055th Area Service Unit (ASU), 1st Guided Missile Group, Fort Bliss in April 1951. It was also stated that apart from a temporary duty assignment with the 4006th ASU, Fourth Army, Chemical Defense School, Camp Bullis, Texas, from October 25 1951 to November 16, 1951, the Veteran remained with his unit at Fort Bliss until his separation from service. There was no indication he had participated in atmospheric nuclear tests during this period. As noted above, the operational period for Operation Buster-Jangle was October 22, 1951 through December 20, 1951. During the hearing before the undersigned in October 2012, the Veteran testified he was assigned to missile units during service, and that he participated in Operation Buster-Jangle. While the information from DTRA indicates the Veteran could not have participated in Operation Buster-Jangle, the Board finds his testimony regarding such participation to be very credible. It must also be emphasized that complete records of his duty assignment are not of record, and cannot be obtained. Under the circumstances, resolving reasonable doubt in his favor, the Board concludes the Veteran did participate in Operation Buster-Jangle. Since it is not disputed that he has acute myelogenous leukemia and multiple myeloma, service connection is granted on a presumptive basis. ORDER Service connection for acute myelogenous leukemia and multiple myeloma is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs