BVA9505807 DOCKET NO. 93-07 894 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for lung cancer secondary to exposure to ionizing radiation. WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran's active service has been confirmed from January 1945 to June 1947 and from October 1950 to November 1951. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL It is argued that the veteran developed lung cancer as a result of exposure to ionizing radiation when he was part of the American occupation forces in Japan. He claims that he was on board ship in Honshu, Japan, and was in several Japanese cities. 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(s). 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 for service connection for lung cancer secondary to exposure to ionizing radiation. FINDINGS OF FACT 1. The veteran developed lung cancer, a radiogenic disease, many years after service. 2. It has not been determined that the veteran was exposed to ionizing radiation during service. CONCLUSION OF LAW Lung cancer was not the result of exposure to ionizing radiation in service. 38 U.S.C.A. §§ 1101, 1110, 1112(c), 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.311 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background The service medical records are negative for lung cancer. The postservice medical records show that the veteran was hospitalized in early 1988 with a history of persistent and progressive dysphagia for three to four weeks. He also had a history of persistent cough. He was found to have oat cell carcinoma of the lung with brain metastasis. He received radiation treatment and chemotherapy. Bronchogenic carcinoma of the right upper lobe was subsequently reported. In his claim received in December 1991, the veteran stated that on the days on which the atomic bomb was dropped on Japan, he was on board ship off the coast of Japan; that a day or so later, he entered Japan; and that he was in several cities in Japan. In April 1992, the DNA reported that the available evidence did not confirm that the veteran had served with either the Hiroshima or Nagasaki occupation forces. It appeared that he came no closer than over 1500 miles to the Main Japanese Islands. At such a distance, there was no risk of exposure to radiation form the strategic atomic bombing of either city. In his testimony at the RO in February 1993, the veteran essentially reiterated the version of his inservice exposure to ionizing radiation which he had given in the earlier claim. Analysis Claims based on exposure to ionizing radiation are governed by 38 U.S.C.A. § 1112 (c) and 38 C.F.R. 3.311. Lung cancer is not one of the diseases subject to presumptive service connection under 38 U.S.C.A. § 1112 (c). However, lung cancer is considered a radiogenic disease under 38 C.F.R. § 3.311. The regulation states that where, as in the veteran's case, a claim is based on participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946, dose data will be requested from the Department of Defense. In this case, the lung cancer was first shown many years after service. It has not been determined either by the DNA or by dose estimate from a credible source that the veteran was exposed to ionizing radiation either during the occupation of Japan or as a result of other inservice activities. In this regard, we have taken note of the veteran's assertions of exposure to ionizing radiation inservice, but he is not considered a "credible source" of dose data according to 38 C.F.R. § 3.311(a)(3)(ii). In that portion of the regulation, a "credible source" is defined as a person or persons certified by an appropriate professional body in the field of health physics, nuclear medicine or radiology. According to 38 C.F.R. § 3.311 (b)(1)(iii), when this requirement (of exposure to ionizing radiation from the DNA or a credible source) is not met, it shall not be determined that the lung cancer resulted from exposure to ionizing radiation in service. We conclude, therefore, that in this case, the lung cancer was not the result of service. With respect to 38 C.F.R. § 3.311 (h), which pertains to service connection under other provisions, the record reveals no probative evidence of exposure to ionizing radiation in service. As a consequence, the veteran cannot prove the actual direct causation of lung cancer on the basis of radiation exposure in service. ORDER Service connection for lung cancer secondary to exposure to ionizing radiation is denied. NANCY I. PHILLIPS 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.