Citation Nr: 1310384 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 10-12 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for non-Hodgkin's lymphoma. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION 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). The Veteran served on active duty from July 1944 to November 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the benefit sought. The case is currently in the jurisdiction of the Muskogee, Oklahoma RO. FINDING OF FACT The Veteran is currently diagnosed with non-Hodgkin's lymphoma; and is shown to have participated in a radiation-risk activity during service. CONCLUSION OF LAW The criteria for service connection for non-Hodgkin's lymphoma have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Applicable Law In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Diseases subject to presumptive service connection based on participation in a "radiation-risk activity" include lymphomas (except Hodgkin's disease). 38 C.F.R. § 3.309(d)(2) . A "radiation-exposed veteran" is defined 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 include the occupation of Hiroshima or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946. 38 C.F.R. § 3.309(d)(3)(i) . The term "occupation of Hiroshima or Nagasaki, Japan, by United States forces" means official military duties within 10 miles of the city limits of either city, which were required to perform or support military occupation functions such as occupation of territory, control of the population, stabilization of the government, demilitarization of the Japanese military, rehabilitation of the infrastructure or deactivation and conversion of war plants or materials. 38 C.F.R. § 3.309(d)(3)(vi). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Veteran has submitted a number of statements in the process of his appeal, where he has consistently reported that he participated in the occupation of Japan between September 22, 1945 and October 20, 1945, including travel to Nagasaki in performing duties including guard duty. He has reported that he was with the 5th Marine Division, 26th Marine Regiment, and was based at Sasebo, Japan, from whence he traveled for duty including to Nagasaki. The Veteran's service personnel records include a U.S.M.C. Enlisted Man's Qualification Card, showing that he participated in the occupation of Japan from September 22, 1945 to October 20, 1945, and that he was a light machine gun crewman. His record of Honorable Discharge of November 1946 shows that he participated in the occupation of Japan from September 23, 1945 to October 20, 1945. Another service personnel record states that the Veteran participated in the occupation of the Sasebo area, Kyushu, Japan, while a member of the 5th Marine Division from September 23, 1945 to October 1945. A January 2010 letter from a Commander, U.S. Navy, Nuclear Test Personnel Review, of the Defense Threat Reduction Agency (DTRA), stated the following: The Veteran's service record indicated that he was assigned to I Company, 3rd Battalion, 26th Marine Regiment, 5th Marine Division, with a military occupational specialty of Machine Gun Crewman. The Veteran arrived at Sasebo, Japan (approximately 30 miles from Nagasaki) by ship on September 22, 1945 and debarked the next day. The Veteran remained at Sasebo until October 19, 1945 when he left by ship. Muster rolls show no temporary additional duty for him to either Hiroshima or Nagasaki. In a reply to that letter, the Veteran addressed a statement in January 2010 to the RO, explaining that while still attached to the 5th Marine Division in Sasebo, Japan, he participated in guard duty and they went back and forth to Nagasaki for guard duty and occupation duty. A March 2010 letter from DTRA (addressed to the Veteran) stated that review of 5th Amphibious Corps Location Statements indicated that the Veteran's unit was located at Arifuku, Japan, just southeast of Sasebo. In a responsive statement received in May 2010, the Veteran stated that he was never with the 5th Amphibious Corps. Rather, he was with the 5th Marine Division at Sasebo, Japan, from where he did guard duty in Nagasaki, Japan, and he was never in Karatsu, Japan. The claims file contains a lay statement received in May 2010 from another Veteran who stated that he served with the 31st Seabee Battalion, attached to the 5th Marine Division in Sasebo, Japan from mid-October 1945 to mid-April 1946. That Veteran reported that his unit did heavy equipment cleanup work in Nagasaki, Japan. The Veteran has submitted an internet article describing "Sasebo Occupation" indicating the arrival of Navy ships to the Sasebo harbor near the Sasebo Naval Station, with the mission of implementing the Surrender and Occupation of Western Japan. In the Veteran's VA Form 9 received in May 2010, he stated that the 5th Marine Division's occupation duties included moving to different places including Nagasaki. In a statement received from the Veteran in December 2011, he reiterated that he was at Sasebo, Japan in September and October of 1945. The first three days they slept on the ground and then the Marines found and took over some barracks of the Japanese Navy. As he was a machine gun crewman, he was sent to Nagasaki for guard duty. There he saw nothing but debris and a big hole, which they were required to guard and to let no one in the area. He indicated that he was based in Sasebo, but that he and other Marines went to many different areas, and did not stay in one area for a month. As reflected in an April 2010 VA hematology and oncology note, the Veteran has a diagnosis of non-Hodgkin's lymphoma stage IV. Letters from the Defense Threat Reduction Agency do not confirm the Veteran's participation to within 10 miles of Nagasaki or Hiroshima, Japan; however, analysis of the evidence overall supports the Veteran's claim. The Veteran has credibly reported on his and his unit's movements in and around Sasebo, Japan, stating that they included travel to Nagasaki, Japan. He has provided other evidence including a lay statement of a Veteran with similar experiences while part of the 5th Marine Division at that time, and other cogent evidence including maps and articles describing the conditions in and around Sasebo. There is no evidence that specifically refutes the Veteran's reports. Moreover, his statements of duties in multiple places including Nagasaki are entirely consistent with the expected chaotic conditions at a momentous point in history when so many American military units converged on so small a space as happened in September 1945 in and around Sasebo, Japan. Thus, Board finds that the veteran is a "radiation-exposed veteran" who while serving on active duty participated in a radiation-risk activity. The medical evidence of record shows that the veteran is currently diagnosed with non-Hodgkin's lymphoma, which is a disease subject to presumptive service connection based on participation in a radiation-risk activity. Therefore, the veteran is entitled to service connection for non-Hodgkin's lymphoma on a presumptive basis. ORDER Entitlement to service connection for non-Hodgkin's lymphoma is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs