BVA9500634 DOCKET NO. 94-22 826 ) 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 chronic myelogenous leukemia due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Lee Pulliam, Attorney WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD William W. Berg, Counsel INTRODUCTION The veteran had active military service during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that denied his claim for service connection for chronic myelogenous leukemia due to exposure to ionizing radiation. Service connection for chronic myelogenous leukemia due to exposure to ionizing radiation was initially denied by the RO in December 1990, and the veteran did not file a timely appeal following notification of the decision. However, because of a change in the governing law, the RO appears to have considered the claim on a de novo basis, and the Board will do likewise. A hearing was held in Washington, D.C., on December 8, 1994, before the undersigned Board Member. The veteran and his spouse appeared with the veteran's attorney-representative and gave sworn testimony. A transcript of that hearing is of record. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he developed chronic myelogenous leukemia as a result of his exposure to ionizing radiation during service. He claims that he flew combat air patrol with a photography plane that took reconnaissance photographs of Hiroshima and Nagasaki within about a week of the atomic bombings of those cities. It is maintained that he made passes over those cities at no more than 200 feet above the ground. 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 for service connection for chronic myelogenous leukemia as a result of exposure to ionizing radiation. FINDINGS OF FACT 1. Chronic myelogenous leukemia was initially present many years following service and is not shown to be related to service. 2. It is not shown that the veteran was exposed to ionizing radiation during his active military service. CONCLUSION OF LAW Chronic myelogenous leukemia was not incurred in or aggravated by service as a result of exposure to ionizing radiation. 38 U.S.C.A. § 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309; 3.311b (revised by 59 Fed. Reg. 5,107 (1994), to be codified at 38 C.F.R. § 3.311). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a), as the testimony in this case is presumed to be credible for purposes of determining well groundedness. King v. Brown, 5 Vet.App. 19, 21 (1993). The Board is satisfied that all relevant evidence has been obtained with respect to this claim and that no further assistance to the veteran is required in order to comply with the duty to assist mandated by statute. The veteran's service medical records are completely negative for complaints or findings referable to leukemia, and examinations performed for Reserve duty following separation were likewise negative for complaints or findings of chronic myelogenous leukemia. The earliest indication of symptoms consistent with chronic myelogenous leukemia is in September 1988, when the veteran was seen by Dr. Ainsley. The veteran complained of weakness, lightheadedness with bending, thirst and loss of appetite since the previous July. His chief complaint, however, was that he was tired all the time, but he did not know the cause for this. The veteran indicated that he had not experienced similar problems previously. Laboratory studies were felt to be consistent with chronic myelogenous leukemia, and the veteran was scheduled for additional evaluation at a hospital affiliated with the University of North Carolina at Chapel Hill. A bone marrow aspirate and biopsy were obtained when the veteran was evaluated by the hospital hematology and oncology service at Chapel Hill, and a diagnosis of chronic myelogenous leukemia was confirmed. A course of interferon therapy was then instituted, and his disease has recently been in remission. It is not contended that chronic myelogenous leukemia was present in service or within a year of separation in November 1946. Rather, it is maintained that the veteran developed chronic myelogenous leukemia as a result of exposure to ionizing radiation in service. The veteran and his attorney- representative have offered evidence, including a statement from Dr. Meadows, his treating oncologist, showing that exposure to ionizing radiation is a common etiological factor in the development of chronic myelogenous leukemia. The Board observes that it is undisputed that the veteran has a disease that is subject to service connection on a radiation basis. The unresolved question in this case, however, is whether the veteran was exposed to ionizing radiation during service. The record shows that the veteran served on active duty as a Naval aviator and that his overseas duty was with a fighter squadron (VF-94) attached to the USS LEXINGTON (CV-16). The Defense Nuclear Agency in January 1993 confirmed that the veteran was present with his squadron aboard the LEXINGTON off the northern and central coasts of Honshu, Japan, from July through September 1945. On September 5, 1945, the LEXINGTON entered Tokyo Bay and anchored at Yokohama, a suburb of Tokyo. The Defense Nuclear Agency noted that this placed the LEXINGTON more than 400 miles from Hiroshima and 550 miles from Nagasaki. The Defense Nuclear Agency further reported that the War Dairy for the veteran's squadron did not document any flights to or over Hiroshima or Nagasaki. Although the War Diary for VF-94 is available only through August 13, 1945, the War Diary for the LEXINGTON, which notes air activity against Japanese targets and post-war occupation duties through September 1945, likewise shows no flights to or over the two cities during this period. The Defense Nuclear Agency reported that the LEXINGTON departed Tokyo Bay on September 20, 1945, for Saipan in the Mariana Islands, more than 1500 miles from Japan, and that the veteran was released from duty with the ship four days later and transferred to the United States in November 1945. The report of the Defense Nuclear Agency concludes that the available military records place the veteran in Japan but not with the American occupation forces at either Hiroshima or Nagasaki and adds that at a distance of hundreds of miles from those sites, there was no risk of exposure to radiation from the strategic atomic bombing of either city. Although the evidence of the service department is not conclusive on the issue of inservice radiation exposure, Earle v. Brown, 6 Vet.App. 558, 562 (1994), the Board is of the opinion that it is highly persuasive in this case. This is because the War diaries are contemporaneous records, which are inherently more reliable than accounts based on memory more than four decades later. Moreover, the Board is of the opinion that the statements and testimonial evidence offered by the veteran to establish his presence at Hiroshima and Nagasaki within a week of the bombings are not credible and therefore are not entitled to the weight that the evidence of the service department is entitled. The Board notes that in his statement received in November 1990, the veteran indicated that in August 1945, less than a week after the atomic bombings, he along with three other pilots were assigned to fly over the Hiroshima and Nagasaki and "report on the devastation caused by the bombs." The veteran stated that they were told to fly as low and slow as possible, which they did, and to report their findings to ship's company. He said that the crews flew over the site at 200 feet. In his statement received in June 1992, the veteran said that he was an F6F pilot and one of four pilots from his ship ordered to fly over the ruins and report back to ship's company what they had observed. He indicated that this was within one week of the bombings. In a statement received the following month, the veteran again indicated that his mission was to overfly Hiroshima and Nagasaki and to bring back to his ship a full report of the destruction. He said that this could only be accomplished by flying low, and he stated that he "was never ashore in Japan." The veteran indicated in a statement received in July 1993 that he flew over Hiroshima and Nagasaki "within a few days of the bombings." He stated that he flew combat patrol for the photo plane and that they reported their findings back to the LEXINGTON. In testimony before a hearing officer at the RO in February 1994, the veteran said that following the atomic bombings, four pilots were assigned to the overflight of Hiroshima and Nagasaki. One pilot flew a photo plane with a hole for a camera in the bottom of the plane and flew low so that he could take photographs. He was accompanied by a wingman. The veteran and another pilot flew combat air patrol above them. He testified that the two of them who flew combat air patrol flew low to inspect the devastation caused by the bombs. The veteran's testimony regarding the location of his ship in Japanese waters is consistent with the service department records, but he stated that he had no idea why his records did not show that he was in the Hiroshima and Nagasaki areas at that time. He also claimed that he flew at 100 feet or less over those cities. He repeated his claim that after the pilots had returned to their ship, they were asked to make a presentation to ship's company concerning what they had observed. In response to questions from the hearing officer, the veteran said that he believed that he overflew both cities on one day within a week of the bombings. He stated that he flew about 100 feet above the ground and estimated that he was over each city for about 30 minutes. He further testified that he did not write his own report because he believed that the photo pilot would do so. There are several troubling aspects to this story. One is that although he was assigned to fly combat air patrol he also testified that he flew low to inspect the devastation at the sites. However, that was not his mission; his mission was to fly combat air patrol for a plane that allegedly would take photos of the devastation that in turn would speak for themselves. His mission, if he can be believed, was to protect the other planes from attack, a mission compromised by his willingness to fly low just to see what was going on. His evidence, to this point, is consistent in insisting that he flew his mission within a few days of the bombings. The United States was still at war with Japan at that point, and the Board is troubled by the veteran's testimony that he flew "low and slow" over the sites rather than protecting the other planes in the flight. Moreover, the veteran has not given a convincing explanation of the necessity for this mission. Furthermore, the LEXINGTON's War Diary would have mentioned it, yet the War Diary is silent regarding this mission. Finally, if the mission actually took place within a few days of the bombings of Hiroshima and Nagasaki, this likely would have been reflected in the War Diary of the veteran's squadron, yet it too is silent regarding his mission. In view of the foregoing, the veteran's testimony before the Board in December 1994 seems not entirely credible. In his testimony, the veteran indicated that he flew his mission over the cities sometime within one week after the bombings, but when shown entries from his flight log dated in August 1945, he admitted that he had annotated only patrols over the Tokyo area and had not indicated any flights over Hiroshima or Nagasaki. When asked why he had not noted the latter, he could offer no explanation. It seems odd that a mission invested with the drama that the veteran claims would not have merited an annotation in his flight log. It is also interesting that only in his testimony before the Board did the veteran mention that his plane had been mounted with extra fuel tanks to take him to Hiroshima and Nagasaki and back to his ship. It is also interesting to note that the veteran did not have any explanation for the absence from the War diaries of his squadron and ship of any mention of his mission to the bombed-out cities. The veteran's spouse testified that shortly after the end of World War II, the veteran mentioned to her having seen the devastation, but that he did not talk much about his service experience. The Board observes, however, that the testimony of the veteran's spouse, rendered nearly a half century after the events to which it relates is not wholly reliable for the purpose of corroborating the veteran's story. The veteran likely saw much devastation while flying over Japan, but that does not mean that he was involved in a specific mission to Hiroshima or Nagasaki or otherwise exposed to ionizing radiation in service. Testimony and other evidence of record is to the effect that the veteran, who worked in a coal mine following service, was not exposed to ionizing radiation after service and that an infant daughter died of birth defects in 1946 and a son, born in 1950, had a low sperm count. It is contended that the medical evidence demonstrates that chronic myelogenous leukemia is manifested about 30 to 40 years following exposure. It is claimed that this tends to show that he must have been exposed to ionizing radiation in service, but this evidence is entirely speculative with respect to the causes underlying these events. Service connection may not be based on a resort to speculation or remote possibility. See 38 C.F.R. §§ 3.102, 3.303 (1993). Finally, the Board has taken note of Dr. Meadows' opinion regarding the etiology of the veteran's chronic myelogenous leukemia, but this opinion is predicated on a history of exposure related by the veteran and can be no better than the facts alleged by him. Elkins v. Brown, 5 Vet.App. 474, 478 (1993); Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993); Swann v. Brown, 5 Vet.App. 229, 233 (1993). A rejection of the factual predicate necessarily involves a rejection of the etiological opinion based on that predicate. The Board therefore concludes that the preponderance of the evidence is against a finding that the veteran was exposed to ionizing radiation during his active military service. As the evidence is not in approximate balance on this material issue, the veteran is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet.App. 49, 58 (1990). Accordingly, a basis for a grant of service connection for chronic myelogenous leukemia as a result of exposure to ionizing radiation cannot be identified. ORDER Service connection for chronic myelogenous leukemia due to exposure to ionizing radiation is denied. ROBERT E. SULLIVAN 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.