Citation Nr: 1804379 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 17-10 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to exposure to ionizing radiation. 2. Entitlement to service connection for diabetes mellitus, to include as due to exposure to ionizing radiation. 3. Entitlement to service connection for a vision disorder, to include as due to exposure to ionizing radiation. 4. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from April 1951 to April 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The April 2016 rating decision addressed a number of service connection claims, which the Veteran timely appealed. In a November 2017 rating decision, the RO granted entitlement to service connection for disabilities of the left hip, left knee, and feet. As such, these claims are no longer on appeal The Veteran testified at a Board hearing from his RO in May 2017, before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is contained in the virtual record. These issues were previously before the Board in August 2017, when they were remanded for additional development regarding the Veteran's reported exposure to ionizing radiation, and examinations. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the August 2017 remand, the Board directed the RO to contact the Veteran and request information regarding his exposure to ionizing radiation. The RO did request that information, and the Veteran provided his unit information and the location of his reported exposure to ionizing radiation in November 2017. The Board additionally directed the RO to research the Veteran's claims regarding ionizing radiation exposure following his report of information regarding his unit and location of testing. Unfortunately, the RO issued a Supplemental Statement of the Case (SSOC) a few days after the Veteran responded, but the SSOC noted that the Veteran had not responded, and the RO had conducted no research into the issue. The Veteran's November 2017 statement included that he served with G Company 20th Infantry in Fort Ord, California from April to September 1951. He was then with the 95th Combat Engineers in Fort Lewis, Washington from October 1951 to March 1952. Lastly, he served with the 38th Heavy Truck Company, 26th Battalion from March 1952 to April 1953. He stated he was exposed to ionizing radiation four times. Twice at 1.9 miles from ground zero and twice at 3+ miles from ground zero at Camp Desert Rock, Nevada Proving Ground. During his Board hearing, when the undersigned VLJ asked him about the company he served with during the exposure to ionizing radiation, the Veteran reported he was with the "26th Battalion" and the "38th heavy truck company" and also the "6th Army." The Veteran's DD 214 noted that he was a part of the 38th Heavy Transportation Company (38th HVY T CO CP ROBERTS, CALIF). The Board, through limited research, was able to determine that the 38th Transportation Truck Company, was present for Operation Tumbler-Snapper according to the Defense Technical Information Center publication of a PDF of "Operation Tumbler-Snapper 1952." See www.dtic.mil/dtic/tr/fulltext/u2/a122242.pdf (last visited January 16, 2018). Additionally, the Board was able to locate a "Fact Sheet" from the Defense Threat Reduction Agency regarding Operation Tumbler-Snapper. The Fact Sheet indicated that "exercise Desert Rock IV" was an Army training program that included an observer program and tactical maneuvers. The Observer program conducted four shots (CHARLIE, DOG, FOX and GEORGE) which included the observation of a nuclear detonation. "Soldiers from various Sixth Army units provided support for the Exercise Desert Rock IV programs," and they were maintained and operated through Camp Desert Rock, which was 1.9 miles from the Nevada Proving Ground. Some of the Desert Rock support troops worked providing transportation, and "many" observed at least one detonation, while "some" were called upon to perform support or staff duties in the test areas during nuclear detonations. The Fact Sheet did not specifically list the 38th Heavy Truck Transportation Company, but noted that there were "observers from the six continental armies." See http://www.dtra.mil/Portals/61/Documents/NTPR/1-Fact_Sheets/12_TUMBLER-SNAPPER.pdf (last visited January 16, 2018). To the extent that the RO did not research the Veteran's reports of exposure to nuclear bomb testing, the Board will remand for compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The research should include whether the Veteran's units participated in Operation Tumbler-Snapper. As noted in the prior REMAND, the Veteran's service connection claims are not for cancer or other "radiogenic diseases" as defined by 38 C.F.R. §§ 3.309(d) and 3.311. However, a third method of establishing service connection is available by way of establishing that the diseases (here: hypertension, diabetes, and vision disorder) diagnosed after discharge are the result of exposure to ionizing radiation during active service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service treatment and service personnel records are unavailable (except for two April 1953 records), and were destroyed in a fire at the NPRC in St. Louis, Missouri, in 1973. The United States Court of Appeals for Veteran's Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). On remand, the Veteran must be afforded VA examinations with opinion as to whether his hypertension, diabetes mellitus, and vision disorders are a result of his service, to include exposure to ionizing radiation. The Veteran's claim for SMC based on Aid and Attendance is additionally remanded as his service connection claims are intertwined with his SMC claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The Aid and Attendance examination in the claims file from October 2015 indicated that the Veteran's "complete diagnosis" was simply "kidney failure." Additionally, it does not appear the Veteran was provided with notification on the information necessary to prove his claims (VCAA notice). On remand, VCAA notice regarding service connection and SMC claims must be provided to the Veteran. Lastly, he should be afforded a VA Aid and Attendance examination. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran with appropriate notice (VCAA) regarding his claims for service connection and SMC Aid and Attendance. 2. Research the Veteran's claims that he was exposed to nuclear bomb testing at the Nevada Proving Grounds with the 38th Heavy Truck Transportation Company of the 6th Army. Research should include if the Veteran may have been present for Operation Tumbler-Snapper in April 1952. 3. Schedule the Veteran for a VA diabetes examination. After a review of the claims file, and interview and examination of the Veteran, the examiner should provide the following opinions: a) Is it at least as likely as not (50/50 probability or greater) that the Veteran's diabetes mellitus is due to his military service? b) is it at least as likely as not (50/50 probability or greater) that the Veteran's diabetes mellitus is due to exposure to ionizing radiation from observed nuclear bomb testing? Provide a complete explanation/rationale for all opinions expressed. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Schedule the Veteran for a VA hypertension examination. After a review of the claims file, and interview and examination of the Veteran, the examiner should provide the following opinions: a) Is it at least as likely as not (50/50 probability or greater) that the Veteran's hypertension is due to his military service? b) Is it at least as likely as not (50/50 probability or greater) that the Veteran's hypertension is due to exposure to ionizing radiation from observed nuclear bomb testing? Provide a complete explanation/rationale for all opinions expressed. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. Schedule the Veteran for a VA vision examination. After a review of the claims file, and interview and examination of the Veteran, the examiner should provide the following opinions: a) Is it at least as likely as not (50/50 probability or greater) that the Veteran's vision disorder(s) is due to his military service? b) Is it at least as likely as not (50/50 probability or greater) that the Veteran's vision disorder(s) is due to exposure to ionizing radiation from observed nuclear bomb testing? Provide a complete explanation/rationale for all opinions expressed. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 6. Schedule the Veteran for an aid and attendance examination. 7. After the above is complete, readjudicate the Veteran's claims. If the claims remain denied, issue a supplemental statement of the case (SSOC). The Veteran and his representative should be given an opportunity to respond before the case is returned to the Board. The Veteran and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).