BVA9502513 DOCKET NO. 92-02 103 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for non-Hodgkin's lymphoma as secondary to exposure to ionizing radiation from the atmospheric nuclear test series Operation IVY, conducted from November 1 to 16, 1952. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD R. K. ErkenBrack, Counsel INTRODUCTION The veteran served on active duty from October 1951 to March 1956. This appeal arises from a rating decision in July 1991 of the Department of Veterans Affairs (VA) Regional Office (RO) at Winston-Salem, North Carolina. By appellate decision in December 1992, the Board of Veterans' Appeals (Board) denied service connection for non-Hodgkin's lymphoma and the veteran appealed to the United States Court of Veterans Appeals (Court). In a MEMORANDUM DECISION (single-judge disposition) dated in April 1994, the Court indicated that the veteran had non- Hodgkin's lymphoma, which is a disease for which a radiation- exposed veteran (REV) is entitled to presumptive service connection under 38 C.F.R. § 3.309(d)(2)(x). The Court stated that , based on the facts of record, the only basis upon which the veteran might qualify as a REV was if his ship was present at the nuclear test site for Operation IVY during any period from November 1 to 16, 1952. The veteran had so alleged, arguing that he had been at Kwajalein Atoll during the pertinent period. It was apparent to the Court that the Board had relied on a Defense Nuclear Agency (DNA) report to determine that Operation IVY was not conducted at Kwajalein Atoll. The Court's review of the DNA evidence indicated that it was unclear whether Kwajalein was not part of the test site or that, while part of the test site, the veteran was not present. On this basis, the Board's December 1991 decision was vacated and the appeal was remanded for the Board to readjudicate whether Kwajalein was part of the test site for Operation IVY and, if it was, whether the veteran's ship was present at Kwajalein during the period November 1 to 16, 1952. The Court noted that the veteran was free to introduce evidence as to whether Kwajalein was a test site. The Board REMANDED the case to the RO in July 1994 to request of DNA whether Kwajalein was part of the test site for Operation IVY and, if it was, whether USS Bausell (DD-845) (BAUSELL) was used in direct support of the nuclear test; whether Kwajalein was part of the test site or staging area in connection with completion of projects related to the nuclear test during the six month period following the official operational period; and whether personnel from BAUSELL were so employed. If it was determined that Kwajalein was part of the test site or staging area after the nuclear test and DNA was unable to confirm the veteran's presence at the site, then the RO was directed to request BAUSELL'S log for the relevant period. The RO was then to readjudicate the claim under 38 C.F.R. § 3.309(d)(2)(x)-(3)(iv). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that he went ashore on Kwajalein while he was stationed on board BAUSELL, between January 1952 and December 1954. He states that he is planning to attend a reunion where he is sure he will meet former shipmates on BAUSELL who will recall the visit to Kwajalein. He notes that he does not seek "pension" but "just" reimbursement for medical expenses related to lymphoma. He asserts that BAUSELL'S log will validate his location in the vicinity of atmospheric nuclear testing in the early 1950's. He emphasizes that his oncologist has indicated the possibility that exposure to ionizing radiation caused non-Hodgkin's lymphoma some 40 years later. He noted that he is not aware of having been exposed to any ionizing radiation except in connection with his service on BAUSELL in the course of its operations in the Marshall Islands area. It is requested that the benefit of all doubt be resolved in the veteran's favor. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim to establish service connection for non-Hodgkin's lymphoma as secondary to exposure to ionizing radiation at the atmospheric nuclear test series Operation IVY, conducted from November 1 to 16, 1952. FINDINGS OF FACT 1. All the evidence necessary for an equitable disposition of the veteran's claim has been obtained by the VA. 2. Non-Hodgkin's lymphoma was not shown to have been present during or until many years following service. 3. On the basis of pertinent ship logs and other historical data, it has been determined by DNA that the veteran was not a participant in any atmospheric test series, to include Operations IVY and CASTLE; that he was never in the vicinity or within 1000 miles of any such tests; and that he was not otherwise exposed to ionizing radiation in connection with any atmospheric nuclear test during service. 4. It is not claimed or shown that the veteran was occupationally exposed to ionizing radiation during service. 5. Non-Hodgkin's lymphoma is not shown to have been caused by inservice exposure to ionizing radiation. CONCLUSION OF LAW Non-Hodgkin's lymphoma was not incurred in or aggravated by service; nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(a) (West 1991); 38 C.F.R. §§ 3.307,. 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background It is not disputed or otherwise shown that non-Hodgkin's lymphoma was not present during or until many years following service; that the veteran did not suffer from radiation illness during service; that he was not occupationally exposed to ionizing radiation during service; or that he was not exposed to ionizing radiation during service at all except in connection with his claimed location at or near atmospheric nuclear test sites between January 1952 and December 1954; namely, in connection with a claimed visit ashore on Kwajalein Atoll during or shortly following Operation IVY, conducted between November 1 and 16, 1952. The clinical evidence submitted by David G. Allen, M.D., confirms non-Hodgkin's lymphoma first becoming symptomatic in April 1989 and confirmed by biopsy in May 1989. In July 1991, DNA reported that Navy records gave no indication that the veteran was present at an atmospheric nuclear test series or was on Kwajalein Atoll. On January 19, 1952, he began service on BAUSELL, which lasted until March 12, 1954, at which time he transferred to the U.S. Naval Receiving Station, Sasebo, Japan. He reported to the U.S.S. ASHTABULA (AO 51) on March 14, 1954, for transportation to Long Beach, California. He left ASHTABULA on April 11, 1954, at Long Beach and reported to the Naval Receiving Station there. He returned from leave on May 21, 1954, and reported to the U.S. Naval Ship Repair Facility, Guam, Mariana Islands, on June 4, 1954. On February 2, 1955, he transferred to the U.S. Naval Air Facility, Naha, Okinawa, and on August 13, 1955, he transferred to the Naval Air Station, Cecil Field, Florida. He was released to inactive duty on March 2, 1956. During his service on BAUSELL, ASHTABULA, and subsequent period of leave, two U.S. nuclear test series were conducted in the Pacific: Operation IVY at Eniwetok Atoll from November 1 to 16, 1952 and Operation CASTLE at Bikini and Eniwetok Atolls from March 1 to May 14, 1954. When he was first assigned to BAUSELL, it was operating along the U.S. West Coast. It then went to the Far East on May 20, 1952, where he served a combat tour with the 7th Fleet on June 10, 1952, participating in blockading, bombardment, and patrolling of Korea and contiguous areas in support of United Nations Forces (UNF). When the combat tour ended on December 2, 1952, he returned to West Coast waters. He returned to the Far East in September 1953 for another combat tour in support of UNF, which ended on March 21, 1954, nine days after he had left the ship in Sasebo, Japan. The historical records revealed no indication that he was at an atmospheric nuclear test site or on Kwajalein Atoll. In August 1994, DNA responded to the Board's July 1994 REMAND by stating that Operation IVY was conducted at Eniwetok Atoll, Marshall Islands, during November and December 1952. Kwajalein Atoll, Marshall Islands, was located about 300 miles from Eniwetok and received some fallout from the IVY detonations. During the veteran's tour of duty on BAUSELL (January 1952 to March 1954), movement reports for the ship indicated that she did not stop at or near Kwajalein during either IVY or the IVY post- operational period. Movement reports from BAUSELL (copies of pertinent ship log reports were attached) indicated that she was operating in the Far East, Guam, Pearl Harbor, and along the West Coast during the period of time in question, no nearer than 1000 miles to the Marshall Islands. The historical records did not document the veteran's presence at the site of a U.S. atmospheric nuclear test. II. Analysis This claim hinges on the veteran's unsubstantiated recollection that he was on Kwajalein and therefore subjected to ionizing radiation exposure associated with an atmospheric nuclear test qualifying him as a REV and satisfying the requirements of service connection for non-Hodgkin's lymphoma on a presumptive basis, under 38 C.F.R. § 3.309(d)(2)(x)-(3)(iv). Service connection on any other basis is not claimed and the requirements thereof are not shown. In other words, there is no argument or showing that non-Hodgkin's lymphoma was present during or until many years following service or was due to any event or circumstance of service, to include exposure to ionizing radiation, other than that claimed to have occurred concomitant with a putative on-shore visit to Kwajalein Atoll while he was stationed on board the BAUSELL. The complete evidence regarding this claim is consistently against the veteran's assertion of having been ashore on Kwajalein Atoll between early 1952 and mid-1954. BAUSELL's log indicates that the veteran while on board was never closer than 1000 miles from Kwajalein Atoll. He may be convinced in himself that he was on Kwajalein, but such an assertion in light of the proven historical record is not tenable or credible. We would note that it is not inconceivable that his memory going back more than 40 years and the fact that he was onboard ship in the Far East, Guam, etc., during the pertinent time period has led to a mistaken belief that he went ashore on Kwajalein Atoll when he may have gone ashore on some other island consistent with the proven location of BAUSELL on the basis of the log. In any event, it is satisfactorily established that he did not come within the ambit of any exposure to ionizing radiation during service, especially in connection with atmospheric nuclear testing, to meet the criteria of a REV who meets the requirement of presumptive service-connection for non-Hodgkin's lymphoma. He was neither present during a nuclear test nor during the official operational period thereafter. When all the evidence is assembled, [VA] is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). The benefit of the doubt rule only applies where there is approximate equipoise/balance in the relevant evidence for and against the claim. In this case, the preponderance of the evidence weighs against the claim. Accordingly, the benefit of the doubt rule is inapplicable. (CONTINUED ON NEXT PAGE) ORDER Service connection for non-Hodgkin's lymphoma as secondary to exposure to ionizing radiation from the atmospheric nuclear test series Operation IVY, conducted from November 1 to 16, 1952, is denied. SAMUEL W. WARNER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.