Citation Nr: 22046212 Decision Date: 08/15/22 Archive Date: 08/15/22 DOCKET NO. 18-06 111A DATE: August 15, 2022 ORDER Entitlement to service connection for non-Hodgkin's lymphoma (NHL) is granted. FINDING OF FACT The Veteran's NHL is related to in-service exposure to ionizing radiation. CONCLUSION OF LAW The criteria for service connection for NHL are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1970 through August 1974. These matters are before the Board of Veterans' Appeals (Board) from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2022, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. Service Connection The Veteran seeks service connection for NHL, asserting that his lymphoma is related to exposures in service including radiation exposures from performing his duties as a nuclear ordinance mechanic. Specifically, during his time aboard the USS Nathanael Greene SSBN-636 the Veteran contends that he was exposed to ionizing radiation due to loading, arming, and maintenance of nuclear weapons; as well as, sleeping in the missile compartment. The Veteran further contends that he was issued a dosimeter, however, it frequently slipped off and was often lost in the bilge of the ship and unrecoverable. Lastly, the Veteran contends that he was not allowed by Navy regulations to wear a dosimeter during loading and installation of nuclear warheads. See February 2018 VA Form 9; February 2022 Board Videoconference. Relevant Law and Statutes Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). Service connection for a disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209 (1997); Rucker v. Brown, 10 Vet. App. 67 (1997). First, there are certain types of cancer that are presumptively service-connected specific to radiation-exposed veterans, i.e. veterans who engaged in specified "radiation risk activities." 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). Second, "radiogenic diseases" may be service-connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303 (d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To consider a claim under 38 C.F.R. § 3.311, the evidence must show the following: (1) the Veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and; (3) such disease first became manifest within a period specified by the regulation. 38 C.F.R. § 3.311 (b). If any of the foregoing three requirements has not been met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311. See 38 C.F.R. § 3.311 (b)(1)(iii). 1. Entitlement to service connection for NHL is granted Here the Board concludes that the Veteran's NHL is related to in-service exposure to ionizing radiation. See 38 C.F.R. §§ 3.311. In this case, service connection cannot be granted on a presumptive basis under 38 C.F.R. § 3.309 (d) because the Veteran did not participate in one of the specified radiation risk activities. However, the Board does find that service connection can be granted pursuant to 38 C.F.R. § 3.311. As to the first requirement under section 3.311, the Board finds the Veteran was exposed to ionizing radiation while as a nuclear weapons technician. Notably, the Regional Office conceded exposure while the Veteran served on the USS Nathaneael Greene (SSBN-636). Moreover, the Veteran's claims file contains a DD 1141 and a development memo from the Compensation Service Director that document 0.004 rem DDE-Photon exposure. See August 1974 Service Treatment Records (STRs) at 19; November 2016 VA Memorandum. Next, the Veteran meets the second criteria under section (b)(2) of 3.311, as he developed a radiogenic disease. Notably, non-Hodgkins Lymphoma is a radiogenic disease. 38 C.F.R. § 3.311(b)(2)(xxii). Finally, as to the third requirement, the Veteran's disease became manifest five (5) years after exposure, where he was diagnosed in 2013 with lymphoma. 38 C.F.R. § 3.311(b)(5)(iv). Given that the three requirements are met under section 3.311, review of the medical opinions are warranted. A radiation review memorandum from the Director of the Post-9/11 Era Environmental Health Program was sought, addressing the Veteran's radiation exposure and possible relation to his current NHL was accomplished as required by 38 C.F.R. § 3.311. The Board finds this opinion inadequate for decision-making purposes as the opinion does not address the Veteran's lay statements. Specifically, that he was issued a dosimeter, however, it frequently slipped off and was often lost in the bilge of the ship and unrecoverable, as well as, Navy regulations did not allow him to wear a dosimeter during loading and installation of nuclear warheads. Furthermore, the opinion does not account for the period of February 1973 to May 1973 where the Veteran's dosimeter badge was damaged/missing. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Albeit that the opinions provided The Veteran has provided two opinions, the first, from Dr. JCK received in March 2016, and the second from VA Dr. EC dated in March 2019. See March 2016 Medical Opinion from Dr. JCK; March 2019 VA Medical Opinion from Dr. EC. Both examiners opined that the Veteran's NHL was at least as likely as not caused by exposure to ionizing radiation in-service. Given such, the Board finds these opinions sufficient to establish the nexus. Essentially, resolving all reasonable doubt in favor of the Veteran, service connection for NHL is granted as the elements of 38 C.F.R. § 3.311 have been met. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.