Marquette Elder's Advisor Volume 14 Article 2 Issue 2 Spring

Radioactive Veterans: A New Look at the Nuclear History of America Craig M. Kabatchnick

P. Michelle Fitzsimmons

Jonathan B. Kelly

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Recommended Citation 14 MARQ. ELDER’S ADVISOR 141 (2013)

This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Elder's Advisor by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. 33718-mqe_14-2 Sheet No. 3 Side A 07/02/2013 13:56:24 S ’ AR .B LDER ED .E PSTD and Its ARQ , 33 F , 10 M ) 6/17/2013 5:29 PM 141 thin the various military departments 1 ELETE D B. Kelly*** B. Kelly*** OT Practice Before the Boards for Correction of N O The TBI The TBI Impact: The Truth About Traumatic Brain .MACROS (D ABATCHNICK 269 (2009); (2009); 269 .K & J. 17, 17–21, 44 (cited as a reference in 10 U.S.C. §1552a). §1552a). U.S.C. 10 in reference a as (cited 44 17–21, 17, J. & extensive extensive research and writings, process but of becoming we a are part of more also history. from You in life. can We the never will ask all us.” behind follow be who those leaving behind a legacy for “We are all students of history, a search for the truth through through truth the for a search of history, students all “We are EWS DVISOR UBLISHED Craig M. Kabatchnick*, P. Michelle Fitzsimmons** & Jonathan Fitzsimmons** P. Michelle Kabatchnick*, M. Craig Department of Veterans Affairs Appeals for before Veterans Claims in the over 300 cases. United From 1995 to States present he has Court advocated for of veterans rights and played a VA critical claims role in adjudication the process. FOUR Professor Kabatchnick other articles has for written the Marquette Elder’s Effects Advisor: on Elderly, Minority, and Female Veterans Professor Kabatchnick represented the United States Veteran Affairs Department from of 1990 to 1995 Appellate as Attorney an and Appellate Associate Special Attorney, Assistant Senior on the Litigation Appellate Staff Group, Office of the General Counsel, United States A Professor Craig M. Kabatchnick Program at North Carolina Central University School of is Law, where he Director of teaches Veterans Law the Clinic I Veterans & II. with Law From 1984 his to 1990 he late practiced Correction of Military Records wi father Neil B. in matters Kabatchnick, involving before administrative military authored the an personnel article Boards law. entitled He for co- Military Records Within the Various Military N Departments * This article is dedicated to my Ashley wife Ruth, Kabatchnick, my daughter my Rebecca Lilian mother-in-law World War II in Fink, Birmingham, England, and Robert a Luskin; who have survivor stood my by side supported and all me at times throughout my life and of taught me to never quit, together, but together we ithave all. and that we may not at times have it all RADIOACTIVE ANEW VETERANS: LOOK AT THE NUCLEAR HISTORY OF AMERICA P Injuries and Their Indeterminate Effects on Elderly, Minority, and Female M K C Y 33718-mqe_14-2 Sheet No. 3 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 3 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 3 Side B 07/02/2013 13:56:24 M K . C Y , 12 ARQ Obstacles Obstacles , 13 M [Vol. 14 14 [Vol. 81 (2009); (2009); 81 2 DVISOR A Unsung Survivors: VA Survivors: Unsung Advocacy S ’ ) 6/17/2013 5:29 PM LDER ELETE .E D OT N ARQ O 185 (2010); and and (2010); 185 , 11 M .MACROS (D DVISOR 243 (2012). (2012). 243 MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE A S ’ DVISOR ABATCHNICK LDER A .K S ’ .E ACKGROUND In a personal letter dated August 2, 1939 from his home in Some recent work by E. Fermi and L. Szilard, which has has which Szilard, L. and Fermi E. by work recent Some been communicated to me in manuscript, leads me to expect that the element uranium may be turned into a new and important source of energy in the immediate future. Certain aspects arisen seem to of call for the watchfulness and, if situation necessary, quick which action has on the believe therefore part that it of is recommendations: and facts following the the my attention duty Administration. to bring to I your “The “The truth of the matter is that you always know it.” is doing the part hard The to do. thing right ISTORY B ARQ LDER UBLISHED A. Long Island, New York, as follows: stated and D. Roosevelt, Franklin Albert Einstein wrote to President E and characterization of metal complexes for Dr. use in Fitzsimmons nuclear medicine. is licensed to United practice States Federal law Court- in Middle District North of before Carolina,the United North States Patent Carolina, the and Trademark and Office. *** Jonathan Kelly is an attorney specializing in the representation of disabled veterans. Kelly is licensed in the admitted State to of practice New before York the and Veterans’ Affairs Office of theCounsel the and Court of Appeals for Claims. Veterans General Faced by the Elderly Veteran in M the VA Claims Adjudication Process Special thanks to North Carolina Veterans Law Program clinical students Joshua E. Byrd, Central Sophia V. King University School of Law and Krystle Avecedo. ** P. Michelle Fitzsimmons counsels is clients in intellectual a property matters registered and FDA regulations. patent Dr. Fitzsimmons attorney earned her Ph.D. who in Inorganic Chemistry from Wake Forest University, where her doctoral research focused on the synthesis 1. Professor Craig M. Kabatchnick. Jr. Kabatchnick. M. Schwarzkopf, Craig Norman Professor General 1. 2. Veterans of All Wars for the Spouses, Widows, and Children of Elderly Veterans 142 P I. H 33718-mqe_14-2 Sheet No. 3 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 3 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 4 Side A 07/02/2013 13:56:24 143 ) 6/17/2013 5:29 PM ELETE D OT N O RADIOACTIVE VETERANS RADIOACTIVE .MACROS (D ABATCHNICK .K I understand that Germany has actually stopped the the stopped actually has Germany that budgets of University laboratories, by providing funds, if such funds be required, private through persons who his are willing to contacts make contributions with for this cause, and perhaps also operation by obtaining of the co- industrial laboratories necessaryequipment. understand which have the I sale which of mines uranium from Czechoslovakian the she has taken over. That she should have early taken such action might perhaps be understood on the a) to approach Government Departments, keep them them keep at is which Departments, work, Government Administration and the group of physicists working on chain reactions in achieving America. might experimental be for you to entrust with One this task person approach a possible who way of has perhaps the serve in your an to inofficial confidence [sic] capacity. following: the comprise might and His task up who a) could informed of the further development, and put forward recommendations speed for particular to attention the problem of securing a supply Government to States; United the for ore uranium of action, giving b) present being carried on within the limits of the The United States has only very poor ores of uranium uranium of ores poor very only has much less certain – that extremely powerful bombs of a new type may States thus be constructed. A single bomb this type, carried of by boat and exploded in a port, might very well destroy the whole port together with some of might bombs such However, territory. the surrounding United very well prove to be too heavy for transportation air. by The in moderate quantities. Canada and There the former Czechoslovakia, while the most is some good Congo. is Belgian uranium of source important ore in In view of this situation you may think it desirable have to some permanent contact maintained between the This new phenomenon would also lead to the the to lead also would In the course of the last four months it has been made probable – through the work of Joliot in France as well as Fermi and Szilard in America – that it may become possible to set up a nuclear mass of chain uranium, by which vast amounts of power and reaction phenomenon in a large large quantities of new radium-like elements would be new generated. Now it future. immediate the in achieved be could appears almost certain that This this construction of bombs, and it is conceivable – though UBLISHED 2013] 2013] P M K C Y 33718-mqe_14-2 Sheet No. 4 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 4 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 4 Side B 07/02/2013 13:56:24 M K C Y In In NTOLD 4 U 3 HE ,T [Vol. 14 14 [Vol. UZNICK K ETER Oliver Stone’s Untold History of the &P TONE TONE S ) 6/17/2013 5:29 PM ELETE D LIVER OT N O 87–226 (2012) and and (2012) 87–226 TATES S .MACROS (D MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE NITED U (Showtime television series, 2012). 2012). series, television (Showtime ABATCHNICK http://media.nara.gov/Public_Vaults/00762_.pdf. http://media.nara.gov/Public_Vaults/00762_.pdf. .K This race to build the first atomic bomb, the most By 1942, many major cities had been bombed. Initially, Thus, with this single letter from Dr. Albert Einstein to ground ground that the son of the German Under-Secretary of State, von Weizsäcker, Wilhelm-Institut [sic] is in attached repeated. being is now on uranium work American Berlin to where the some of Kaiser- the ISTORY OF THE THE ISTORY OF UBLISHED United States General General Curtis at a great cost but of Germany, heartland in targets the industrial LeMay’s bombing strategy included the would would split in two when placed would next begin to a nuclear radioactive arms material race; the initial over dominance Hitler military Adolph and deny Germany Nazi purpose being to world. theentire formidable weapon ever known to would existence of in eventually the threaten every country very mankind, a weapon that the world, would involve the scientists. world’s greatest chemists and discovery, which would culminate to the creation and use of two and use of two culminate to the would creation which discovery, nuclear bombs on Japanese civilian populations in August 1945 (Hiroshima and Nagasaki) both of which had no military value whatsoever at that time. Within ten months, the world would become engulfed in World War II, a Germany, “total led war,” whereupon by a control, except ruthless for Great Britain, the entire Western dictator, and Eastern Adolph Hitler, Europe would portions of subsequently the Soviet Union in 1941-1942. the The 1938 discovery European continent by by a German chemist 1940, in Nazi and Germany that a uranium atom December December 1938, a chemist in a German laboratory made a 4. Unless otherwise footnoted all the information in this historical section section historical this in information the all footnoted otherwise Unless Roosevelt (Aug. 2, 1939) (on file at the Franklin D. Roosevelt Library 3. and Museum), Letter at available from Albert Einstein 4. (with Leo Szilard), comes to from two related President sources: O Franklin H 144 P President President Franklin Roosevelt, dated German invasion of just Poland and the one subsequent start of World day War after II, the the race to build the first atomic bomb began. 33718-mqe_14-2 Sheet No. 4 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 4 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 5 Side A 07/02/2013 13:56:24 145 ) 6/17/2013 5:29 PM ELETE D OT N O RADIOACTIVE VETERANS RADIOACTIVE .MACROS (D ABATCHNICK .K In late 1944, General LeMay transferred to Japan and started and started to Japan transferred LeMay In late 1944, General The war with Germany ended with their surrender on May UBLISHED 2013] 2013] P bombers bombers to attack phosphorous, Tokyo and with other devastating to incendiary flammable the city bombs, because material. bamboo there white and were wood large throughout Tokyo. amounts This of That than raid killed was more 100,000 civilians, homeless. while The Allied Air leaving Force firebombed at least another targets in 100 Japan, some with other no military one significance; these raids million hatred hatred toward the Japanese people was exacerbated by reports in 1944 of Japanese Prisoners atrocities of against War (POWs) American during and the Philippine instances. other many in and British death march, a campaign of indiscriminate “terror” civilian centers, bombings similar to the of practice he had initiated Japanese in allied bombings of Germany in World War II. In March of Allied forces 1945 were capturing the more and more Japanese occupied territories, thus bringing Allied bombers that much closer to the Japanese mainland. In March 1945 General LeMay ordered 330 American American bombings. it however, is estimatedthat more civilians German 500,000 than Dresden had died as a little result of the bombing. military By mid-April 1944 little there value; military was value left in bombing Germany, and it known was to American also intelligence that the Germans had stopped their atomic bomb program in favor of the V-1 flying bomb and projects. rocket V-2 8, 1945. But the American hatred toward Japan was exhibited with great ferocity after the attack on Pearl Harbor. Further to the American bomber pilots. LeMay It and British General was Arthur “Bomber” Harris in started the 1943 that General indiscriminate use of American daylight bombing, along with British bombing at night, against centers. civilian German In the summer of 1943, the Americans and destroyed the city of the Hamburg. Later that year, the city German British bombed and of Munster was bombed and destroyed. In February 1945, the city of Dresden was completely destroyed by British and M K C Y 33718-mqe_14-2 Sheet No. 5 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 5 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 5 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. ) 6/17/2013 5:29 PM ELETE D OT N O .MACROS (D MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE ABATCHNICK .K Under Under the leadership of Dr. Robert Oppenheimer, the In this regard, in the summer of 1945 it was President Key facts led to President Truman’s decision to utilize the Given Given the terrible costs of General LeMay’s “terror” UBLISHED bigger bigger threat. of the the face The changed that one of strength, show extraordinary use of the world. atomic bomb would be an Manhattan Project, which involved many chemists, working together and in of physicists, scientists, Chicago, the world’s top Illinois and Los Alamos, New Mexico, secretly completed the atomic bomb was the sinking of the resulted USS in Indianapolis, a which dreadful loss of life returning when to the the Philippines after ship delivering was the components secretly of Tinian. of island to the bomb the atomic essentially were Japanese the although that, belief firm Truman’s defeated from a military perspective, any invasion of the main islands by American forces would hundreds of still thousands of result American lives. in Furthermore, many the loss world and of American military leaders, including Churchill and Truman, believed that the Soviet Union represented an even what was to come in the future. the in come to was what atomic bomb. In May in1945, of taking the island over Jima Iwo after five weeks of combat, the soldiers, United while another 18,000 States were wounded. lost Furthermore, over at 7,000 Okinawa, after 82 days of combat and what was the battle bloodiest of the Pacific War, over and/or missing 12,000 and Americans 36,000 were were wounded. killed The over 100,000 troops and Japanese an equivalent number of civilians while lost defending this island. Another key fact leading to the use of the 146 killed an additional 500,000 Japanese. Yet, the Japanese would not surrender under “unconditional” terms, fearing the loss of Hirohito. Emperor their bombings of civilian targets, the atomic bomb seemed to be the logical next step unconditional surrender. in The atomic trying successfully bomb tested on July constructed 16, 1945, was, and to in fact, a prototype of force the Japanese into P 33718-mqe_14-2 Sheet No. 5 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 5 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 6 Side A 07/02/2013 13:56:24 1945, the 147 ) 6/17/2013 5:29 PM ELETE D OT N O RADIOACTIVE VETERANS RADIOACTIVE .MACROS (D ABATCHNICK .K On August 1, 1945, the Soviet Union invaded northern During During the course of World War II President Harry Truman In July 1945, the three major allied powers, the United UBLISHED 2013] 2013] P surrender. surrender. Manchuria and northern Japan. Then, on August 5, ability ability to develop such a formidable weapon, with a capacity to grant any country a vast capability of military dominance over the entire world, weapon. and manmade devastating thereby introduce the world’s most repeatedly reiterated President Roosevelt’s original call for the unconditional surrender of However, on the July 16, Imperial 1945, Trinity, President Truman had a new weapon that could destroy after Japanese the successful forces. test entire cities, and shot beyond. It was hoped at by Truman that the use of such a bomb would force the Japanese into unconditional two weeks, in hopes of hearing the positive outcome of the July 16 Trinity blast at Los Alamos. Upon hearing the news successful of blast the at the Trinity test site at Los Alamos, President Truman immediately notified British Prime Minister Churchill Winston and Soviet dictator Josef Stalin. Stalin was and furious, for shocked his intelligence had only informed him that the bomb, nuclear a constructing of process the in was States United not of its completion and subsequent successful test shot. This marked the start of the nuclear arms race between States and the Union; Soviet an race that gave arms the thecountries United construction construction of the atomic bomb. This successful construction and detonation of the first atomic bomb, a plutonium implosion bomb, was completed on July 16, 1945, at the Los Trinity. named site code a at Mexico, Alamos New site in test States, Great Britain, and the Soviet Potsdam, Germany Union, to were determine the to future status meet of at Europe. post-war President Truman delayed the Potsdam Conference for Soviet Union declared war on Japan. Japanese was The that under main the terms fear of for unconditional surrender the equivalent the was who Hirohito, theywould their Emperor lose of a god to the Japanese people. However, President Truman M K C Y 33718-mqe_14-2 Sheet No. 6 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 6 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 6 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. ) 6/17/2013 5:29 PM ELETE D OT N O .MACROS (D MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE ABATCHNICK .K President President Truman, in his first radio address, described the Yet, the Japanese government still refused to surrender. Therefore, Therefore, on the morning of August 6, 1945, at 8:15 a.m., UBLISHED backup target was Nagasaki. As with were Hiroshima, both cities chosen because bombing and they had little were military bombings,” value. “terror in belief long-standing LeMay’s General with untouched Therefore, consistent by both American atomic bombings of the Japanese civilian population were deliberately targeted for shock effect. and Kokura, site, the B-29the primary second target carrying the Cloud cover obscured first first atomic bomb and its President Truman further impact stated that the war on started as a result the city at Harbor, they had Pearl and of that beentheJapanese bombing of Hiroshima. repaid manifold. He stated that the atomic bomb exhibited the universe. the of power harnessing Therefore on August 9, 1945, at Tinian, a B-29 was loaded with the second atomic bomb, nicknamed “Fat Man,” implosion a bomb, similar plutonium to the bomb successfully tested at Los Alamos. The second target was to be the city of Kokura and the which contained the equivalent of 20,000 tons of trinitrotoluene (TNT), on the city of Hiroshima, Japan. Hiroshima was selected it because bomb atomic the of use the for three sites of first the as had not previously been bombed and was not of significance. any military In an instant Hiroshima was destroyed, killing at least 70,000 people. In addition, there were an estimated 100,000 civilians who would die exposure. of In wounds, many instances burns, decades, it and before would thousands be radiation of years, people and bomb. atomic that to exposure from resulting poisoning would even die of radiation 148 would ultimately decide that use of the atomic bomb would end the war on American terms, and that he wanted it done as soon as possible in the face of the Soviet Union’s declaration of war against the Japanese. President Truman wanted a swift end to Japan. with the war end to a decisive war and with great secrecy, a single American B-29 bomber named the “Enola Gay” dropped a single uranium bomb, “Little Boy,” P 33718-mqe_14-2 Sheet No. 6 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 6 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 7 Side A 07/02/2013 13:56:24 - 000 PSHOT U PERATION 149 ., DNA 6014F, O Thus, in the interest of of interest the in Thus, EF 5 Atomic Vet Recalls 1946 Bomb Tests – and D , Sept. 21, 2008, 2008, 21, , Sept. ) 6/17/2013 5:29 PM T OF ELETE ’ D EP ENTINEL OT S N ,D O EWS EWS N GENCY A RADIOACTIVE VETERANS RADIOACTIVE .MACROS (D NOXVILLE UCLEAR , K , .N 66, 76–77 (1953); Frank Munger, Munger, Frank (1953); 76–77 66, ABATCHNICK EF .K The United States would conduct numerous atomic blasts Fat Man exploded over Nagasaki with the force of 22, NOTHOLE UBLISHED K http://www.knoxnews.com/news/2008/sep/21/atomic-vet-recalls/. national national security and military strategy, the U.S. military trained Dirty Aftermath 5. D 5. 2013] 2013] P and airplane readiness were tested with both underwater and atmospheric nuclear detonations. development development and successful test of the hydrogen bomb in Pacific the on November 1, 1952. The with the force of hydrogen ten megatons, equivalent to bomb ten million tons of exploded TNT (more than 500 times more powerful than the first atomic Hiroshima). destroyed that bomb between 1946 and 1962. Several conducted in the of Western Pacific, most the especially: Bikini and these atomic blasts were Marshall Islands, the Nevada Test Site, Camp Desert Rock, and in Alaska. Soldiers were ordered to charge towards detonated nuclear bombs to assess troop maneuverability, and battleship United United States and the Soviet Union gained momentum, which live. On we in world fate which the of the change would forever August 29, 1949, the Soviet Union successfully exploded of plutonium exact duplicate the an American bomb, first atomic their implosion bomb, Little Boy, tested at test force of 20,000 tons site of TNT. Trinity,The Americans detected the with Soviet a test blast when an American aircraft flying Pacific detected high levels over of radiation in the atmosphere. the This Western single atomic test blast by the Soviet Union seriously expanded the Cold War in 1949. This was best exemplified by American atomic atomic bomb faced anti-aircraft fire. Therefore, the destiny sealed. was target site, backup the Nagasaki, of tons of TNT, larger than the killed at least Hiroshima 40,000 people. bomb, Furthermore, tens of thousands and of instantly Japanese civilians were fatally wounded, while others died radiation of poisoning. Thereafter, the Japanese surrendered August on 15, 1945. Thus, the nuclear arms race between the M K C Y 33718-mqe_14-2 Sheet No. 7 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 7 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 7 Side B 07/02/2013 13:56:24 M K C Y TOMIC TOMIC EDWING A HROUGH R ENETRATIONS P 1945 T ULY ULY [Vol. 14 14 [Vol. PERATION PERATION J note 5, at 66, 76–77. 76–77. 66, at 5, note LOUD LOUD C ESTS FFECTS OF THE supra T , E ARLY 2.66A, O HE ,E available at at available GENCY UCLEAR ,T A N ROJECT EPORT These nuclear tests exposed R 9 ., P ) 6/17/2013 5:29 PM URVEY S TATES TATES UCLEAR These missions were used to to used were missions These S 8 30–41 (1946), ELETE .N D EF OT NITED N RELIMINARY OMBING OMBING O B INSON INSON ET AL ,U AGASAKI –P A. P &N – as nuclear bombs generate nuclear wind wind nuclear generate bombs nuclear as – 6 NERGY E .MACROS (D ROUNDS TRATEGIC TRATEGIC RNEST RNEST MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE G T OF http://www.hss.energy.gov/healthsafety/ihs/marshall/ http://www.hss.energy.gov/healthsafety/ihs/marshall/ ’ For this reason, the U.S. military had to learn how how learn to had military U.S. the reason, this For , E 7 IROSHIMA IROSHIMA EP H D U.S. S 1992 viii (2000). ABATCHNICK ROVING Id. See, e.g. See .K P available at During During Operation “Crossroads” in 1946, the United States OMBINGS OF OF OMBINGS ACIFIC EPTEMBER UBLISHED 9. U.S. 9. 7. http://www.trumanlibrary.org/whistlestop/study_collections/bomb/large/document s/pdfs/65.pdf. 7. 8. 6. 6. B P (1956), D collection/data/ihp1c/0898_a.pdf; S 150 with nuclear bombs between 1945 and 1962. Nuclear bombs are different from traditional reactions like TNT bombs that relied on chemical P participated participated in Operation Crossroads. The water in and around with was highly contaminated Atoll Bikini and Islands the Bikini radiation; and, the ballast utilized on the ships highly contained contaminated this water. Moreover, when sprayed on the ships, sea the puddles of water that water gathered on the was ship were contaminated with radioactive isotopes. Yet, were allowed ships to travel into Bikini Atoll just twenty the hours after nuclear blast, radioactive the exposing Tragically, radiation. lethal of thousands amounts excessive of naval personnel to offensive offensive and defensive systems.” thousands of veterans in a reckless fashion to lethal amounts of radiation, with the support of very radiation few dosemetry accurate or badges reliable disregard to or the dangers of lethal radiation exposure, either due devices, and thereafter. fallout radiation or itself blast radiation to the with reckless conducted both an atmospheric blast as well as an underwater test blast. These two blasts were identified as Shot “Able” and Shot “Baker.” Numerous naval vessels and naval personnel “determine “determine the effects of nuclear detonations on military gusts, gusts, excessive heat, phenomena. radiation, and other environmental to use nuclear including weapons land, in air, and the sea. traditional arenas of war, 33718-mqe_14-2 Sheet No. 7 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 7 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 8 Side A 07/02/2013 13:56:24 151 ) 6/17/2013 5:29 PM ELETE D OT N O RADIOACTIVE VETERANS RADIOACTIVE .MACROS (D ABATCHNICK .K Veterans Veterans who served in the Nevada and West Pacific The numerous Nevada nuclear test blasts in the 1950s UBLISHED 2013] 2013] P nuclear nuclear test blasts were treated by the military sophistication or science. without Despite their much exposure to lethal doses of radiation, little attention was paid to their future well being. For example, to test exposure merely adobe, of buildings placed and pigs—whose houses, skin to nuclear blasts, the military test sites. Nevada the of the vicinity humans—in to is similar was Shot “Harry.” The intent of the military during Shot Harry was to avoid fallout hitting Salt Lake City and Las Vegas. Shot Harry turned out to be a ionized dirty dust blast, particles with shooting up a into vast the amount atmosphere. fallout headed of straight toward That St. George, Utah, where a wind shear brought the fallout straight over and down onto the city with tragic consequences. At the time of Shot Harry, residents of St. George, Utah remember seeing a “pink city. cloud” over the In the future, cancer clusters population of St. George, Utah, resulting developed in litigation against the throughout the (DOJ). Justice of U.S. Department created created their own set of problems for military personnel. sites The of the atomic test blasts were located in Nevada, which is by its very nature extremely dry, and atomic test blasts were labeled “dirty therefore, blasts.” The inherent risks many of the of releasing large amounts of ionized atmosphere dust during particles the Nevada into atomic the test high, blasts exposing were cities, quite local towns, and amounts of communities radioactive fallout, thus to resulting in lethal higher rates of cancer, and other diseases linked to radiation classic example exposure. of the effects of fallout The on a civilian population fallout fallout from Shot Able and Shot during Operation Baker Crossroads was in so the lethal and Bikini extensive Islands that the innocent residents of those permanently. islands The former residents had of the Bikini Islands to would be evacuated later be compensated due to the fact that they were displaced by the radioactive exposure and fallout caused by Shot Able Crossroads. Operation during Shot Baker and M K C Y 33718-mqe_14-2 Sheet No. 8 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 8 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 8 Side B 07/02/2013 13:56:24 M K C Y ,DOE/NV–764, [Vol. 14 14 [Vol. NERGY E T OF ’ EP 12 ) 6/17/2013 5:29 PM ., U.S. D ELETE D DMIN A OT N O ECURITY ECURITY S .MACROS (D (2011). (2011). MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE UCLEAR OCK with little thought as to the lethal radiological health R .N 11 at 1. 1. at 1–2. at AT ABATCHNICK Id. Id. .K 10 ESERT D In this regard, in the 1950’s the Nevada National Security At Camp Desert Rock in Nevada the U.S. military began In addition, veterans were ordered to stand in close Camp Desert Rock was activated in the fall of 1951 for the AMP UBLISHED 11. 11. 12. Site was the site for a large military camp containing thousands of young active duty military naval and soldiers, personnel, air force military personnel. They personnel, including marines, were to witness the heat and blast of weapon,” the ultimate “doomsday C 10. N 10. military military personnel from the lethal effects of These the active duty military personnel nuclear were, in all tests. respects, being handled human as guinea pigs. It was the goal of the military to deduce whether U.S. troops could fight and survive an atomic attack. and remain in particles. quarters contaminated days. numerous for dust particles ionized with contaminated with They ionized oftentimes dust wore using smaller atomic the blasts to learn how to fight a nuclear war. same On uniforms April 22, conducted maneuvers beneath the mushroom cloud 1952, of the Shot approximately “Charlie” nuclear detonation. 2,000 The 31-kiloton explosion was one Army personnel United date. to that The Nevada in conducted ever of the largest States government provided few basic precautions to protect 152 proximity to the test site and ordered to stare at the stem of the blast, such as in “Upshot-Knothole,” Shot “Badger,” and “Grable” in area Five Shot of the Nevada nuclear test-site on May 23, 1953. These and other veterans were ordered to squat or stand in shallow slit trenches and nuclear then blast. They to were ordered charge to remain the at the stem test days site after for the of initial nuclear test the blast, forcing them to eat food P risks risks and overall safety of these radiation. of amounts directly to lethal soldiers, who were exposed 33718-mqe_14-2 Sheet No. 8 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 8 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 9 Side A 07/02/2013 13:56:24 43, wherein wherein ADIATION ADIATION 14 This class class This &R 15 153 ETERANS ,V 13 nuclear tests and simultaneous simultaneous and tests nuclear FFAIRS note9 (“This document lists lists document (“This note9 all A ) 6/17/2013 5:29 PM supra , ELETE ETERANS D V OT NERGY N E O T OF ’ EP T OF ., D ’ RADIOACTIVE VETERANS RADIOACTIVE YS EP .MACROS (D D .S DUC U.S. .E ABATCHNICK MP See Id. Id. .K After After discharge from active duty military service, many This article is dedicated to the thousands of veterans who Between Between 1945 and 1962, several thousand service members UMMARY S UBLISHED live live nuclear bombs or “shots” were detonated. 15. 15. 141 (2001). 14. E 13. 14. 2013] 2013] P chronologically chronologically and alphabetically by name detonations conducted by the United 1992.”). States from July 1945 through September before returning to Camp Desert Rock. Camp to returning before “Buster-Jangle” “Buster-Jangle” series of nuclear conducted blasts. in Yucca Flats, These Nevada. blasts involved These an were atmospheric nuclear blast. test blasts Thousands of troop observers from all parts of the United States were deployed Desert from Rock Camp to witness, at close range, the atomic detonations. Incredibly, after the atomic explosions, some of the participating troops were marched or bused even closer to “ground zero” to see the effects of these atomic explosions on military equipment Union, Union, and China. This article is the story of the inherent risks and that of sacrifices the veterans test blasts atomic made during their participation in the atomic arms race during the height of the Cold War. And now, subsequent to these atomic test blasts, modern warfare has been revolutionized and a new race, a race to keep the world’s birthed. has been group, or nation intending most destructive detonation from any B. veterans veterans developed forms of cancer and disease for which the government had not available. And in a made very real way, the fallout from these blasts adequate today. continues resources and care participated in these nuclear test blasts from 1940 through 1970. These veterans participated in one of the greatest battles of all- time—the Cold War between the United States, the Soviet were involved in nuclear weapons training missions M K C Y 33718-mqe_14-2 Sheet No. 9 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 9 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 9 Side B 07/02/2013 13:56:24 M K C Y OU OU IVE Y F RE RE EAPONS HE W ,A ., T EVIEW EVIEW OF available at available ED M ECONSTRUCTION ECONSTRUCTION FFAIRS ROGRAM OF THE rd_id=9697, for a R A UCLEAR P OF OF [Vol. 14 14 [Vol. . These “Atomic OSE 16 NST D U.S. N 33–34 (2003), 33–34 ., I ETERANS V GENCY T OF 1575, 1577–78 (1980) [hereinafter A ’ ECONSTRUCTION EP R HAUL ET AL EVIEW OF THE edu/catalog.php?reco T ) 6/17/2013 5:29 PM ARTICIPANTS IN In response to public sentiment sentiment public to response In Leukemia Among Participants in Military OSE OSE P 17 19 D ,AR EDUCTION ELETE USAN acknowledging that some veterans veterans some that acknowledging 244 244 JAMA R D 20 OT (10P3), U.S. D N ILITARY ILITARY GENCY O A M HREAT T Getting the Word Out to Atomic Veterans Exposed to EVIEW THE http://www.nap. EALTH EALTH R ]. See also S .H Nov. 8, 2011, http://www.aarp.org/health/conditions- ?(2012). ?(2012). EFENSE EFENSE UB .MACROS (D EDUCTION P MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE D R ORTALITY ORTALITY OF Leukemia available at However, veterans suffering from radiological radiological from suffering veterans However, ETERAN :M Glyn Glyn G. Caldwell et al., Judi Judi Hasson, 18 V HREAT ABATCHNICK FFICE OF OMMITTEE OMMITTEE TO T , AARP, See .K See C TUDY S 9(2000), Epidemiological Epidemiological studies initiated in the late 1970s revealed . TOMIC TOMIC 17 A EFENSE ESTS ROGRAM OF THE ERIES UBLISHED http://www.nap.edu/openbook.php?isbn=0309089026 http://www.nap.edu/openbook.php?isbn=0309089026 [hereinafter R Caldwell et al., be linked to radiological diseases. Unfortunately, few veterans have been able provoking to Congress receive to compensation compensate pass these under additional veterans, this legislation including Veterans the Compensation Act, to Act of 1988 (REVCA) Radiation-Exposed and the Radiation help were exposed to ionizing radiation, and that this exposure could diseases diseases found it difficult to obtain medical benefits Veterans Administration (VA). from the and pressure from Veterans’ veterans Dioxin groups Standards Congress Act (VDRECSA), and passed Radiation the Exposure Compensation AN 18. 18. Maneuvers at a Nuclear Bomb Test, S T 16. O 16. D P DTRA]. 154 missions bombing the atomic with involved soldiers other joined of Hiroshima and Nagasaki, Japan, the American POWs held in these cities, and soldiers occupation, as victims who of radiation exposure. served during the Japanese P 20. Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, Act, Standards Compensation Exposure Radiation and Dioxin Veterans’ treatments/info-11-2011/atomic-veterans-special-benefits-radiation-exposure.html. 20. (2000)). 1154 § U.S.C. 38 at part in (codified (1984) 2725 Stat. 98 98-542, No. L. Pub. Veterans,” Veterans,” numbering over 400,000, were exposed to radiation either from dust, breathing blast, radioactive bomb the initial the ingesting contaminated food and water after the blast, or living environment. radioactive in the 19. entities. funded government review of 19. Radiation that these Atomic developing Veterans a variety of cancers and were chronic diseases, including at leukemia. an increased risk of 33718-mqe_14-2 Sheet No. 9 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 9 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 10 Side A 07/02/2013 13:56:24 , ’ at the ETERANS OARD OARD ON B available available at ETERAN V (Mar. 11, 2011), at the V the at The current current The DVISORY 21 EETING ’A Update on VA Radiation TOMIC 155 M A (Mar. 23, 2012), slides 4–5 slides 2012), 23, (Mar. This article reviews the the reviews article This ETERANS 105th Cong. (1998) (statement of 22 EETING M C. § 1112(c) (2006)). Radiation Exposure ) 6/17/2013 5:29 PM at the V the at ECONSTRUCTION ACED BY THE THE BY ACED R Radiation Claims Processing F ELETE D (Mar. 11, 2011), slides 6–7, 6–7, slides 2011), 11, (Mar. OSE OSE OT 10/presentations/Flohr_VBDR_Update_March_20 D N O ECONSTRUCTION EETING R M OSE OSE OARD OARD ON HALLENGES HALLENGES http://www.vbdr.org/meetings/2011/presentations/Flohr.pdf http://www.vbdr.org/meetings/2011/presentations/Flohr.pdf RADIOACTIVE VETERANS RADIOACTIVE B D C .MACROS (D Veterans’ Veterans’ Health Care Improvements Act of 1998: Hearing on S. 1385 , Update on VA Radiation Claims Compensation Program for Veterans DVISORY OARD OARD ON PECIAL PECIAL B available at at available ABATCHNICK http://www.vbdr.org/meetings/2012/Presentations/6-Flohr_VBDR_ http://www.vbdr.org/meetings/2012/Presentations/6-Flohr_VBDR_ ’A S ECONSTRUCTION See, e.g. .K R HE T OSE OSE DVISORY ETERANS UBLISHED and and S. 1822 Before the S. Comm. on Veterans' Affairs, http://www.vbdr.org/meetings/20 10.pdf [hereinafter Flohr 2010] (stating that 1,648 denied). were claims claims were granted and 2,918 The bombs nuclear dropped and in on Hiroshima 1945 Nagasaki exhibited the most awesome recorded history. display Witnesses described a bright of white-blue light military power and a in concussive blast, followed by a ring of fire heat and extreme that incinerated thousands and devastated the cities’ D 21. Radiation-Exposed Veterans Compensation Act of 1988, Pub. L. No. 100- No. L. Pub. 1988, of Act Compensation Veterans Radiation-Exposed 21. at 38 C.F.R. (codified (1988) 534 102 Stat. 100-322, No. Pub. L. [OR] 485 102 Stat. 321, at 38 as U.S. and amended (2011) § 3.309(d) Compensation Act, 42 U.S.C. § version of 2210 RECA is note officially entitled (2006) The Radiation (amended Amendments Exposureof 2000, however, for easecolloquial the amended Compensation Act 2000). is still referred Act The current to as RECA. 22. 2013] 2013] P A Dr. Rosalie Bertell, Int’l Inst. of Flohr & Concern Gail Berry, Slide for Presentation, Pub. Health); PowerPoint: Bradley Exposure Exposure Compensation Act of 1990 (RECA). available at available Mar12.pdf [hereinafter Presentation, Flohr 2012]; V PowerPoint: Bradley B. Flohr, Slide legislation legislation provides Atomic Veterans, who suffer from specific a radiological few diseases, an However, obtaining avenue medical benefits for for veterans compensation. from who suffer radiological diseases legislation continues to prove difficult. not specifically outlined in the diseases, diseases, suggests a new standard, and provides a case study in which a veteran was litigation. of decades after diseases radiological finally awarded VA benefits for II. his legal legal and scientific challenges service-connected disability compensation veterans for their radiological face in establishing slides 6–7, [hereinafter Flohr 2011] (stating that denied); 1,968 PowerPoint: claims Bradley B. were Flohr, granted Slide Presentation, and 3,683 Claims were Compensation Program for Veterans M K C Y 33718-mqe_14-2 Sheet No. 10 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 10 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 10 Side B 07/02/2013 13:56:24 M K C Y LAN OMB OMB In In P B 28 87–118 ETECTION ADIATION ADIATION R 664, 664–65 ,D TOMIC TOMIC N ’ ESEARCH ,A IROSHIMA IROSHIMA 29 :R OMM [Vol. 14 14 [Vol. ,H RUES 26 .C ,258 JAMA ,258 AS M. B RINCIPLES OF ERSEY C AGASAKI ,P H However, the long- the However, 25 USTIN OMB OMB &N note 6, at6, note 3–4. B OHN OHN J AFETY &A &S and supra , TOMIC TOMIC ) 6/17/2013 5:29 PM Generally, this requires that that requires this Generally, IROSHIMA IROSHIMA 27 ., A ENSHAW EALTH URVEY ELETE ,H S 3(1947); D .H S. H OT Acute Radiation Syndrome N O Through these observations, scientists NVTL AUL AUL EPORT EPORT INCH INCH ET AL P 24 R OMBING OMBING ISORDERS F .E B D ASH W TUART TUART See also ENERAL S .MACROS (D These nuclear weapons not only demonstrated ELATED MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE 23 OF OF TRATEGIC TRATEGIC . ., G ,Stuart C. Finch, Finch, C. ,Stuart &R NIV Bio-3 (2006). OMM U U.S. S at at 16–27. C ABATCHNICK See See See, e.g. .K Id. Id. See generally Regrettably, Regrettably, scientists and veterans have difficulty linking Once Once these Atomic Veterans developed radiation-related EUKEMIA L ASUALTY ROTECTION UBLISHED 27. 38 C.F.R. § 3.303(d) (2011). (2011). (2006). (2011). 3.303(d) 5107(a) 3.311 § § § C.F.R. U.S.C. C.F.R. 38 38 38 27. 28. 29. and disease onset, and any non-service related activity that may disease. of the development to the contributed have determining determining this nexus the VA must consider probable several radiation factors: dose, tissues or age, organs gender affected, and veterans’ family history, time-lapse between exposure immediate immediate effects of radiation exposure. there be a nexus between a disease and radiation exposure. and medical professionals became aware of the unique and radiological radiological diseases to radiation military exposure service. incurred during This difficulty factors, can including: (1) the lack of be knowledge and the inability to attributed to several measure radiation misinformation communicated to exposure the veteran and the during public the mission; (2) term effects of radiation were largely unknown. were largely radiation effects of term diseases diseases they turned to the VA to provide them care. However, to receive care a must veteran prove with that his/her medical condition is service-connected. C (1965). 26. P 23. 23. 156 infrastructure. P 25. (1946). 25. (1987). OF OF the military prowess of the United States, but also symbolized the regarding of nuclear concerns and beginning science modern radiation exposure. Many survivors of the initiation blast soon succumbed to a mysterious illness, called “radiation sickness,” characterized by: nausea, vomiting, headache, dizziness, fatigue, fever, and skin burns. 24. 24. 33718-mqe_14-2 Sheet No. 10 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 10 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 11 Side A 07/02/2013 13:56:24 31 38 U.S.C. Sections 38 Sections U.S.C. 157 Atomic Veterans must must Veterans Atomic 33 connection, under under connection, ) 6/17/2013 5:29 PM 4) the long “incubation period” ( ELETE D OT N O Sections III, IV. IV. III, Sections This is largely because, with the exception exception the with because, largely is This 32 RADIOACTIVE VETERANS RADIOACTIVE infra .MACROS (D 30 discussion discussion ABATCHNICK See .K Unfortunately, Unfortunately, in the absence of direct scientific data H.R. H.R. Rep. No. 98-592, at 7 (1984) reprinted in 1984 U.S.C.C.A.N. 4449, 4453; 130 UBLISHED still still prove a nexus between an in-service injury or disease and a disability. current Even though Congress has enacted various legislation to compel the VA and the DOJ to award Atomic radiation Veterans who exposure suffer from benefits certain radiological to diseases, including VDRECSA and extremely limited. REVCA, compensation remains 30. 30. 2013] 2013] P the veteran was a claim 31. filed for direct service- Prior to VDRECSA and subsequent legislation, the only option available to radiation. about about radiation exposure; (3) the soldiers prohibiting oath of them secrecy their physicians; with exposure from sworn by discussing with their which many radiological radiation diseases are associated; difficulty (5) associated the with retrospectively calculating radiation exposure dose; and (6) the variability experienced of radiation by exposure veterans, analysis which of linking complicates specific the diseases scientific with specific types of 33. 38 U.S.C. § 1112(c) (2006). (2006). 1112(c) § the long-term effects of radiation exposure about and exposure the lack levels. of In reliable addition, radiogenic-disease information claims were addressed there by the agency's was various regional offices. great U.S.C. inconsistency See in the way Cong. Rec.13,147-49 (1984)(statement of Sen. Cranston). 38 Standards Act, Pub. L. 98-542,No. 98 32. Stat.2725 (1984)(codified in part at 38 U.S.C.§ Including the Veterans’ 1154 (2000)); Radiation-Exposed Veterans Dioxin Compensation Act and of 1988, Pub. Radiation L. No. 100-321, Exposure 102 Stat. 485 [OR] Pub. Compensation L. No. 100-322, 102 Stat. 534 (1988) (codified at 38 C.F.R. § 3.309(d)(2011) and as amended at 38 U.S.C.§ 1112(c)(2006)); and Radiation Exposure Compensation Act, 42U.S.C. § 2210 note(2006) (amended 2000). 33. of delineated “presumptive diseases,” claims, disease the veteran 3.303. For radiogenic 38 Section and C.F.R. 1154(a) 1110, radiation. ionizing to in-service exposure from resulted disease the had to that show Veterans and their survivors who attempted to establish direct service-connection were seldom successful under that proof, regime including the lack because of ready of access to the scientific and medical severe evidence about difficulties of establishing a “cause-and-effect” relationship between radiation radiation between relationship a establishing “cause-and-effect” exposure and radiological disease, denied the service-connected compensation for this class of injury. VA has historically M K C Y 33718-mqe_14-2 Sheet No. 11 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 11 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 11 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. ) 6/26/2013 11:27 AM ELETE D OT N O violating expressed congressional congressional expressed violating 34 .MACROS (D MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE ABATCHNICK .K This article argues that the current application of VDRECSA In summary, this article argues that Atomic Veterans face UBLISHED 34. 38 C.F.R. § 3.102 (2012). (2012). 3.102 § C.F.R. 38 34. standard standard of review. Thus, the procedure cases are by reviewed which precludes radiation the application of the benefit-of- the-doubt standard, 158 and REVCA creates challenges for the Atomic precluding the award of service connection. This is due, in Veteran, part, often to the way the VA evaluates the higher standard of review on these claims than claim, was intended by arguably imposing a Congress. Rather than reflecting a “likely association” between the exposure, and disease radiation the the way in which the VA evaluates these factors reflect a heightened “cause and effect” P benefits. Finally, this article suggests the similar VA to use a dioxin standard claims when benefits. evaluating veteran claims for an unnecessary number of challenges in connected establishing disability service- claims for their thus, radiologic the VA diseases; should adopt and a new standard under which claims these are evaluated. In Sections outline III the reasons and why scientists IV and veterans this have article difficulty will linking radiological diseases to during radiation military exposure service. incurred evaluate Next, the this article various will laws benefits. outline In that Section and VI the regulate article presents a veteran case study indicative that access is of the to difficulties inherent in a veteran appeal for command. Therefore, current adjudication regulations should be interpreted governing or amended claims to conform the to governing statutes and congressional intent. ease the This burden on would Atomic Veterans, subjecting their service- related compensation claims to the same of standard review that other similarly situated legislation. the VDRECSA receive under currently veterans (i.e. Vietnam Veterans) 33718-mqe_14-2 Sheet No. 11 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 11 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 12 Side A 07/02/2013 13:56:24 S ’ 39 36 TOMIC TOMIC Harold A The The OUNTY . 153, 155 41 C Origins of HE CI S :T See also ZAUKEE ZAUKEE 171 (1996) (outlining (outlining (1996) 171 UCLEAR & :O note 6. 159 .N ROSSROADS UTY C EV D supra , 1873 (3d ed. 2002). 2002). ed. (3d 1873 .R NCOLOGY ECRECY ECRECY NN ROM F &O ,S URVEY S PERATION 18 A ROTECTION ACK P ICTIONARY ,O ) 6/17/2013 5:29 PM B D See ELETE OMBING OMBING D B note 9, at viii. ADIATION EISGALL OT ADIOTHERAPY ACK OF Unfortunately, during these military military these during Unfortunately, N The field originated and developed, developed, and originated field The note17, at8, 21. 14 2002). (Laurie Arendt ed., L :R 38 O supra supra 35 40 , M. W , 38 R TRATEGIC TRATEGIC supra supra S NTERNATIONAL 230 (1994). TORIES I S Henning Henning Willers & H.-P. Beck-Bornholdt, NERGY RADIOACTIVE VETERANS RADIOACTIVE E ISSIONS EW U.S. .MACROS (D N DTRA, TOLL TOLL HEIR M ONATHAN ONATHAN S T OF T OF T A ’ Through military missions that involved the the involved that missions military Through ’ , J 37 EP D HARE IKINI IKINI EBSTER S Review of Nuclear Weapons Effects, B ABATCHNICK EVIEW EVIEW OF Id. See, e.g. See generally See generally .K ILITARY ILITARY ISINFORMATION ADIATION AND THE During During these missions, precautions to protect soldiers from Radiobiology Radiobiology is the study of the effects of ionizing radiation M M R ETERANS ESTS AT UBLISHED detonation detonation of nuclear bombs, much was learned about how to better control the nuclear reactions and the types emitted of from the radiation blasts. 38. U.S. (1968). 38. 40. 40. 41. Worn Worn by soldiers at select locations, the badges were analyzed and used to determine doses. gamma radiation radiation fields and to approximate Nuclear bombs release radiation in the form of x-rays, gamma rays, neutron radiation, beta (depending upon the bombs initial composition and the route of particles, and alpha detonation). particles 36. 36. missions missions little was known about the exposure. for was the gamma ray potential However, radiation complexity of radiation known; and, gamma radiation badges,” were detectors, used to called measure “dosimeter gamma radiation exposure. radiation radiation exposure were either absent military adopted or the “duck inadequate. and cover” strategy for protecting soldiers, and encouraged veterans to utilize bunkers to avoid T V 35. W 35. 2013] 2013] P Radiotherapy and Radiobiology III. L. Brode, 37. radiobiology). of growth and origins the 37. upon living organisms. 39. R 39. A. along with nuclear science, during the twentieth century. M K C Y 33718-mqe_14-2 Sheet No. 12 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 12 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 12 Side B 07/02/2013 13:56:24 M K C Y ACT ACT F If alpha alpha If 48 NOTHOLE caltreatments/ra -K Beta particles particles Beta The radiation [Vol. 14 14 [Vol. 45 49 , http://www.epa.gov/ , http://www.epa.gov/ PSHOT U , Y ’ GENCY OC .A S Although Although these methods 43 ROT PERATION Alpha particles are easily .P 44 ANCER ANCER ,O ) 6/17/2013 5:29 PM However, when alpha or beta beta or alpha when However, .C 46 NVTL M E uses/othercarcinogens/medi ELETE note 5, 171–72. , A GENCY D A OT , U.S. N supra note17, at5, 21. , O Veterans who inhaled radioactive dust dust radioactive inhaled who Veterans 51 supra supra GENCY EDUCTION A R Gamma rays, x-rays, and neutrons penetrate penetrate neutrons and x-rays, rays, Gamma 47 .MACROS (D DTRA, MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE Other protective mechanisms included smoke smoke included mechanisms protective Other 42 HREAT UCLEAR This type of exposure has been linked to solid solid to linked been has exposure of type This .T .N 50 at 60–63. 60–63. at ABATCHNICK EF EF EVIEW EVIEW OF Id. Radiation Exposure and Cancer Id. Id. Id. Id. Id. .K Radiation Protection Basics 2, 8 (2008). In the absence of adequate protection, soldiers involved in HEET UBLISHED may have provided radiation, these primitive methods have proven to cover be largely ineffective from because the some particles and radiation types rays emitted from reactions of nuclear have unique properties. particles, beta particles, neutrons, gamma rays, or x-rays reach living cells, the living cells absorb the radiation. likely likely had radioactive material deposited in their nose, lungs, 51. 51. tumors and leukemia. particles are inhaled or internal organs. ingested the particles can damage 45. updated rpdweb00/understand/protection_basics.html (last 6,2012). July 45. the skin and are absorbed by the internal organs. 46. http://www.cancer.org/cancer/cancerca 2010). 29, revised Mar. (last diation-exposure-and-cancer R 46. 47. 48. 49. 50. 42. D 42. S 160 flash burns. P curtains, shoe covers, and showering. and covers, shoe curtains, can be absorbed by clothing, but particles maintain the potential to penetrate and burn the skin. 44. 44. these these were missions exposed to ionizing radiation in a variety of exposed ways. to the Veterans initial blast were likely irradiated with x-rays, neutron and gamma rays, beta particles, and alpha particles. then acts in a variety of ways to interfere with normal processes, cellular directly killing the cell or damaging the cells’ DNA, cancer. into eventually develop which can 43. D 43. absorbed absorbed by a thin piece of paper or the dead cells of and pose little the danger to a skin person fully covered. 33718-mqe_14-2 Sheet No. 12 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 12 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 13 Side A 07/02/2013 13:56:24 , & ORKERS ORKERS EALTH After W 59 H These These T ’ 13–16 (2003). 56 EP 9, 9, 42, 57 (1999), ANCER ANCER AND ,U.S.D ITERATURE ITERATURE 161 L ., C ADIATION ADIATION The Nevada and and Nevada The R 53 Most veterans were were veterans Most EGISTRY 57 R ESEARCH R ONIZING ONIZING I REENE REENE ET AL ISEASE ISEASE G ) 6/17/2013 5:29 PM &D ELETE EVIEW EVIEW OF ERRY D ECRECY , T S OT ROFILE ROFILE FOR During these missions the soldiers soldiers the missions these During :AR P N note17, at21, 34. 54 O UBSTANCES S Atomic Vet Recalls 1946 Bomb Tests – and Dirty Aftermath , Sept. 21, 2008, http://www.knoxnews.com/ http://www.knoxnews.com/ 2008, 21, , Sept. supra supra and ingested radioactive food. 55 ILITARY ILITARY ADIATION RADIOACTIVE VETERANS RADIOACTIVE OXIC See also, e.g. R T M .MACROS (D ENTINEL DTRA, DTRA, Citing the Espionage Act of 1917, Roosevelt set S OXICOLOGICAL OXICOLOGICAL This material remains in the veterans’ tissues, tissues, veterans’ the in remains material This 58 52 ., T . at 22. EWS EWS ONIZING ONIZING I OLE OF OF OLE N Frank Munger, Munger, Frank at 32, 34–35. 34–35. 32, at http://www.atsdr.cdc.gov/ToxProfiles/tp149.pdf. http://www.atsdr.cdc.gov/ToxProfiles/tp149.pdf. O ABATCHNICK GENCY FOR EVIEW OF ERVS R T S Id. Id. See id .K See Military Military secrecy is a unique hurdle for the Atomic Veteran. HE . T 55 UMAN NOXVILLE XPOSED XPOSED UBLISHED veterans veterans are ripe commonly for associated radiation cancers. bladder cancers in addition to the the federal government’s classification standards and for broadly applied secrecy to secrecy, all government officials. 56. R 56. Marshall Marshall Island testing sites hosted several where radioactivity accumulated in the sand, soil, training and water; so, missions soldiers were exposed to large amounts of prior radioactivity and from current shots. news/2008/sep/21/atomic-vet-recalls/. exposed exposed to radiation through several of of diseases. variety a to these susceptible thus, are activities and, B. the veteran’s medical care, access scientists to from records, performing and early prevented epidemiological 1940, studies. President Franklin Roosevelt In issued an Executive Order, which protected information relating installations. to military and naval On one hand, patriotism. secrecy On the other hand, the was, same secrecy compromised and is, deemed requisite to 58. Exec. Order No.8,381, 5 Fed. Reg. 1,147 (Mar. 22, 1940). 1940). 22, (Mar. (2006). 1,147 Reg. 792–99 §§ Fed. 5 U.S.C. 18 No.8,381, Act, Order Exec. Espionage 58. 59. H E 53. A 52. 53. 2013] 2013] P 57. 57. and bones. radioactive radioactive water, emitting radioactive material for years, eventually causing nasal, nasal, causing eventually years, for material radioactive emitting lung, or bone cancer, and bone disease. lived in radioactive environments, drank and bathed in 54. at available 54. K M K C Y 33718-mqe_14-2 Sheet No. 13 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 13 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 13 Side B 07/02/2013 13:56:24 M K : C Y ., ERV S and and It is 60 62 ATIONAL ONTROLS N C ESEARCH THER THER (2006), (2006), for a more .R [Vol. 14 14 [Vol. &O ONG , C ROTECTION ROTECTION OF NEZO NFORMATION NFORMATION I J. K NFORMATION ”I ) 6/17/2013 5:29 PM ., RL 33502, P noting the national security ECHNICAL 61 ENEVIEVE ERV ELETE S D &T OT N O NCLASSIFIED U ESEARCH CIENTIFIC UT (2006), and G S B .R .MACROS (D ONG MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE ,C ENSITIVE 63 PTIONS FOR LSEA (authorizing the Commissioner of Patents to keep secret those patents patents those secret keep to Patents of Commissioner the (authorizing NFORMATION ABATCHNICK E I Id. .K &O Since Since much of the information related to the nuclear testing States any classified information – (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or (2) concerning the design, construction, maintenance, use, or repair of any device, prepared apparatus, or or appliance planned used government or for cryptographic for or communication intelligence purposes; use or by (3) concerning the the United communication States intelligence States or activities any or of foreign the government; any United communication or foreign (4) intelligence obtained from by the the government, knowing the same to have been processes obtained by such processes – communications of of any Shall be fined foreign under this title or imprisoned not more both.). than ten years, or (Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized uses in any manner prejudicial to the safety or interest of the United person, States or publishes, or or for the benefit of any government foreign to the detriment of the United OLICY OLICY ECURITY UBLISHED ENNIFER on inventions in widespread which knowledge of the which government would harm J has national security). an See ownership generally interest and the the Invention Secrecy Act, detailed discussion of these and information. government sensitive other regulatory regimes for the protection of 63. 18 U.S.C. § 798(a) (2006) (2006) 798(a) § U.S.C. 18 63. implication implication of some scientific and technological advances. this legislation that provides the basic framework for protecting secrecy related to nuclear weapons Espionage Act testing. of 1917, this legislation subjects Atomic Veterans Along with the to penalties mission(s). for disclosing information related to their RL 33303,P “S 62. 62. 61. (1994). 181 § 35 U.S.C. Act, Invention Secrecy S 60. Atomic Energy Act of 1954, 42 U.S.C. § 2011 (2000). (2000). 2011 § U.S.C. 42 1954, of Act Energy Atomic 60. 162 World War II, Congress enacted the Atomic Energy Act P missions missions was classified, missions. Therefore, Atomic Veterans veterans could not legally disclose could not their disclose potential their radiation Physicians, exposure largely ignorant during of the military missions, scope would service. of not military know nuclear to ask radiation the veteran exposure about and, ionizing therefore, consider would a radiological be disease less as a likely diagnosis. to Additionally, 33718-mqe_14-2 Sheet No. 13 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 13 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 14 Side A 07/02/2013 13:56:24 66 SPECTS SPECTS A EDICAL ,June 22, 1983, 1983, 22, ,June M IMES T Moreover, many many Moreover, 163 64 ANEL ANEL ON P , N.Y. available at OINT OINT :J As a result, many Atomic Atomic many result, a As ) 6/17/2013 5:29 PM 65 Conclusions: Tests Proved Irresistible Spread of IRECTIVE ELETE D ., D OT D N O .B available at EV &D RADIOACTIVE VETERANS RADIOACTIVE 5 (1949), (1949), 5 Without the scientific evidence linking linking evidence scientific the Without .MACROS (D 67 , , Stafford L. Warren, ESEARCH ARFARE ARFARE R LIFE, Aug.1947, at 86, 88. , W ABATCHNICK HE See, e.g. .K Survey Pressed on Illness of Atomic Veterans The secrecy of these nuclear missions also adversely TOMIC TOMIC A UBLISHED Radioactivity veterans refused to believe illnesses and birth defects might have have might defects birth andillnesses believe to refused veterans been caused by their service. OF OF Unfortunately, Unfortunately, these doctors Veterans’ medical records to assess were the long term medical risks not associated collecting with radiation Atomic conducting “research and development in the medical aspects of exposure, but rather atomic warfare with they specific emphasis on were human tolerance and to protection exposed against radioactivity, . . . .” casualties individuals, decontamination of and treatment of radiation 64. 64. 2013] 2013] P because because the government had informed the veterans radiation that exposure their was not harmful, the have veteran no would reason also to suspect the manifestation disease either of immediately or a decades later. radiological http://www.nytimes.com/1983/06/22/us/survey-pressed-on-illness-of-atomic- veterans.html. T and 66. Committee on The Atomic Research Energy, Directive and 1949), 23 Feb. 25, D.C (Washington Warfare, Atomic Joint Development Panel Board, on Committee Medical on Aspects Medical of Sciences http://www.gwu.edu/~nsarchiv/radiation/dir/mstreet/commeet/meet4/brief4.gfr/tab _o/br4o2a.txt. 67. group group of scientists who had access to the radiological data. affected affected the identification of secrecy order slowed and distorted the flow of information. The radiation diseases because the independent scientific community, largely nuclear unaware missions, was not of able to study the these environmental and health effects of the medical professionals radiation could not exposure, collect data from and government officials scientists or and veterans to diseases. link A radiation small exposure working under body the to Atomic of Energy specific Commission, was governmental the only medical doctors, Veterans’ health order. secrecy the by compromised and medical treatments were likely 65. 65. M K C Y 33718-mqe_14-2 Sheet No. 14 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 14 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 14 Side B 07/02/2013 13:56:24 M K , C Y TH TH ., N.Y. , 96 and which 73 74 ATABOOK 204 Secret 69 D Energy 71 ,Dec. 8, 1993, 1993, 8, ,Dec. [Vol. 14 14 [Vol. EAPONS NVESTIGATIONS W IMES T &I (1984). The purpose of the UCLEAR note 18, at 1575–78; Glyn G. G. Glyn 1575–78; at 18, note /1993/12/08/us/204-secret-nuclear- ., N John H. Cushman, Jr., Jr., Cushman, H. John ., ., N.Y. VERSIGHT supra O ecret-nuclear-tests-by-us-are-made- , APABILITIES ) 6/17/2013 5:29 PM These disclosures provided provided disclosures These C See also ON ON 72 . ELETE (Comm. Print 1980). D 68 JAMA 620, 624 (1983) [hereinafter Caldwell et Leukemia OCHRAN OCHRAN ET AL OT IGS N P 250 O 204 Secret Nuclear Tests by U.S. are Made Public B. C UBCOMM ORCES AND S F series is to shed light on the secrecy involving involving secrecy the on light shed to is series .103-97(1994). .103-97(1994). UINEA O C.F.R. § 3.303 (2011); 38 U.S.C. § 5107(a) (2006). Thus, the G Subsequently, the U.S. Government began to to began Government U.S. the Subsequently, .N HOMAS 70 T EP .MACROS (D TAFF TAFF OF R UCLEAR MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE , Veterans’ Dioxin and Radiation Exposure Compensation , S Mortality Mortality & Cancer Frequency Among Military Nuclear Test (Smoky) ,Caldwell et al., al., et ,Caldwell ,S. ORGOTTEN ORGOTTEN F ABATCHNICK ]. 1: U.S. N HE See generally See, e.g. See,e.g. .K See, e.g. See, e.g. ., T In the early 1980s scientists began to publish studies linking ,Dec. 8, 1993, http://www.nytimes.com 1993, 8, ,Dec. Smoky OLUME OLUME ONG IMES UBLISHED Caldwell et al., Participants, 1957 Through 1979, Standards Act, Pub. L. No.98-542, 98 Stat.2725 (1984)(codified in part at 38 U.S.C.§ 1154 (2000)); Radiation-Exposed Veterans Compensation Act of 1988, Pub. L. No. 100-321, 102 Stat. 485 [OR] Pub. L. No. 100-322, 102 Stat. 534 (1988) (codified at 38 C.F.R. § 3.309(d)(2011) and as amended at 38 U.S.C.§ 1112(c)(2006)); and Radiation Exposure Compensation Act, 42U.S.C. § 2210 note(2006) (amended 2000). 71. 71. Secretary, Hazel O’Leary, Testing Program, stating, characterized “[w]e were shrouded and theclouded in U.S. an atmosphere of . . . secrecy. And I would take it a step further: Weapons I would call it repression.” T veterans’ veterans’ radiation exposure with mortality and cancer, al., al., public.html. public.html. 72. John H. Cushman, Jr., http://www.nytimes.com/1993/12/08/us/204-s establish a well–grounded claim establishing radiation a in service. 38 causal link to their exposure to C 68. Under the direct service-connection regulation, 38 C.F.R. Section 3.303(d), 3.303(d), Section C.F.R. 38 regulation, service-connection direct the Under http://www.gwu.edu/~nsarchiv/radiation/dir/mstreet/commeet/meet4/brief4.gfr/tab Warfare). Atomic of Aspects Medical on Panel Joint the (creating _o/br4o2a.txt 68. the Veteran is required to produce competent medical evidence sufficient to 164 radiation exposure to a particular disease, the award VA service-connected could not medical benefits or suffering. his/her for veteran compensate the P declassify declassify documents relating to the program. V Nuclear Weapons Databook information about nuclear weapons. strengthen legislation for compensating Atomic Veterans. Atomic compensating for legislation strengthen 74. 74. 73. tests-by-us-are-made-public.html. 73. prompted congressional inquiries Testing of Program. the Nuclear Weapons 69. veteran would have to submit medical evidence of a nexus between an disability. current and a injury or disease in-service 69. Congress the opportunity to hold further inquiries 70. 70. Nuclear Tests by U.S. are Made Public 33718-mqe_14-2 Sheet No. 14 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 14 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 15 Side A 07/02/2013 13:56:24 , REW REW In In C To To 75 78 available available DVISORY (July (July 22, EPORT OF A R (1951), ,at Chapter 10 10 Chapter ,at INAL INAL XPOSURE XPOSURE EDICAL ,F E ROBLEM ROBLEM OF M so “America’s “America’s so OMMISSION P 77 TTACK TTACK C A 165 XPERIMENTS IRCRAFT IRCRAFT E A TOMIC TOMIC XPERIMENTS RRADIATION RRADIATION ety/ohre/roadmap/achre/ ety/ohre/roadmap/achre/ E A NERGY NERGY I E Radioactive Fallout to Iron County, UT County, Iron to Fallout Radioactive SYCHOLOGICAL SYCHOLOGICAL NDER U ADIATION ADIATION note 24, at 2–3 (exhibiting that even in in even that (exhibiting 2–3 at 24, note ) 6/17/2013 5:29 PM R ADIATION ADIATION TOMIC TOMIC R AZARDS OF ., http://toxipedia.org/display/wanmec/ ., http://toxipedia.org/display/wanmec/ ELETE ROPULSION OF A supra H TR D P , UMAN URVIVAL URVIVAL OT .C N H UMAN ., S O H PECIAL PECIAL DUC EF note 64, at 88 (exhibiting that concerns were not S ENSHAW D &E ON ON . H IVIL IVIL ACHRE]. ACHRE]. RADIOACTIVE VETERANS RADIOACTIVE supra supra C OMM .MACROS (D NERGY NERGY FOR THE and set forth a campaign to “cure[] [service [service “cure[] to campaign a forth set and USEUM C E 76 See also OMMITTEE OMMITTEE ON http://www.hss.doe.gov/healthsaf M T OF ’ C EP Warren, ELATIVE TO THE [hereinafter R UCLEAR ABATCHNICK DVISORY UCLEAR See Id. .K availableat ISINFORMATION BY THE ISINFORMATION 79 DVISORY , ACHRE No. DOD-121494-A-2, P .N Although Although the acute effects of radiation exposure were Publicly, Publicly, the government assured soldiers that radiation A M http://ia700606.us.archive.org/4/items/survivalunderato00bost/ http://ia700606.us.archive.org/4/items/survivalunderato00bost/ ASH ANEL ELECTION UBLISHED communicated). communicated). index.html assure service members that radiation exposure was harmless, the Army provided brochures to service members to allay their fears. members] members] of the ‘mystical’ fear of radiation,” 76. See D See 1947, due to previous irradiation experiences, the believe program had that “good reason reproductive to disturbances, shortened life span, malignancies altered genetic pattern, of etc., will in one time appear lesser degrees.”). in form greater or or another, 76. at and survivalunderato00bost.pdf Nick Thorpe, W 78. A 1949). 78. 77. N (lastRadioactive+Fallout+to+Iron+County,+UT updated Nov. 2, 2010), for examples public. to the released of information 77. THE THE revealed revealed through the scientists studies have always of been Hiroshima concerned with chronic and the effects of long-term ionizing Nagasaki, radiation. or However, these concerns were not directly communicated to veterans or the public. P S 75. 75. 2013] 2013] P (1995), C. 79. 79. was harmless atomic war-fighting capability would [not] be crippled.” fact, U.S. Government agencies assured the public that radiation harmful. harmful. For example, the Joint Panel on Atomic Medical Aspects of Warfare’s 1949 Directive, listed below, clearly was harmless, but an important part of the U.S. Nuclear Testing program the effects was inof radiation to the theater understand of war. Thus, veterans as test subjects various and discovered that exposure was quite agencies tasked with this job used M K C Y 33718-mqe_14-2 Sheet No. 15 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 15 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 15 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. ) 6/17/2013 5:29 PM ADIATION ELETE D R OT N O FFECTS OF FFECTS E .MACROS (D MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE ABATCHNICK .K IOLOGICAL IOLOGICAL B 2.3 There is lack of existing knowledge concerning concerning knowledge existing of lack is There materials. radioactive of absorbed toxicology 2.3 the combined injury. traumatic effects of 3. radiation, Present Research Requirements of Support thermal, and Development and Program in 3.1 The attainment of immediate goals feasible is provided thattechnically effects of moderate dose levels of may radiation be external on observed human patients and volunteers. 2.1 Lack of accurate information concerning effects of of effects concerning concerning information environments. on infections, 1.1.7 Effects mammals. and man in function its system and of radiation on accurate Future Goals 1.2 the information central The nervous future of mechanisms goal underlying be may minimized prevented, injury is radiation potential radiation damage, to or treated. so understand Lack the accurate the 2. Deficiencies of Present Equipments biologic and Systems of in Requirements Meeting 2.1 Lack on man. radiation external of variouslevels dose 2.2 1.1.3 Casualty-producing doses which should lead to to lead should various by which doses modified as radiation safety. reasonable of 1.1.2 Hazardous doses Casualty-producing for which performance may of cause diverse incapacity military missions without with or permanent damage hours. of a matter within to incapacitate dose critical or death. 1.1.3 effects Determine evacuation from The possible. contaminated areas materials. radioactive of 1.1.4.Toxicology whenever doses. moderate of man on 1.1.5 Effects 1.1.6 concurrent factors such as burns, trauma, and 1.1.1 Maximum single and repeated doses of of doses repeated and single Goals Military 1. goals Immediate 1.1 The immediate goals are to obtain new and meaningful Maximum information on concerning: radiation the biological 1.1.1 effects of radiation ionizing which may be tolerated by man with UBLISHED 166 demonstrates a willingness to subjects: use veterans as experimental P 33718-mqe_14-2 Sheet No. 15 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 15 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 16 Side A 07/02/2013 13:56:24 80 This report report This 81 167 note 67 note directive its (outlining supra ., D ) 6/17/2013 5:29 PM .B EV ELETE D &D OT N O ESEARCH R RADIOACTIVE VETERANS RADIOACTIVE note 78, at Executive Summary. Summary. at Executive 78, note HE T .MACROS (D supra ABATCHNICK See generally .K In 1994, by Executive Order, President Clinton created the 4.3 Advantage should be taken of any opportunities the of opportunities any phases of all taken in be effort of should Advantage duplication man. in of radiation doses of moderate effects 4.3 Some for the study man. in particularly of the biological 4.4 effects of radiation program is justifiable and necessary for rapid progress. This refers both to duplication (a) within the Services, science. of world the and Services the between and (b) 3.6 The program shows no evidence of suffering suffering the of of evidence no measurements shows program initiate The to 3.6 or money. facilities personnel, planning lack of from Recommendations and Conclusions 4. necessary 4.1 continued. be should Researches in biological motor of the of deterioration the study effects Continue 4.1.1 of and sensory radiation still functions attending sublethal mammals. in irradiation and lethal is (monkeys). on primates emphasis the 4.1.2 Decrease It of influence mutual the on emphasis the Increase 4.1.3 radiation injury combined injury. traumatic with thermal 4.2 and with 3.2 The obtaining and disinformation of necessary necessary in of desirable and disinformation and inevitable is obtaining The 3.2 necessity. is a military information duplication 3.3 Most of the five immediate goals can years be achieved in provided Some there stimulus. scientific is adequate financial and - none. programs 3.4 Alternative 3.5 the present state of progress. The most serious gap failure is to secure on radiation man. adequate ionizing of efforts quantitative data on the UBLISHED 80. 80. 2013] 2013] P Advisory Advisory Committee on investigate and Human report on the use of human beings as subjects of Radiation Experiments federally to funded research using ionizing radiation. elucidated, in great detail, the lack of information about ionizing ionizing about information of lack the detail, great in elucidated, radiation and the misinformation members and communicated the public to about the service health effects of ACHRE, radiation subjects). test veterans as using includes that 81. M K C Y 33718-mqe_14-2 Sheet No. 16 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 16 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 16 Side B 07/02/2013 13:56:24 M K C Y 4.1: AVAL AVAL HAUL and and ALF A ILITARY ILITARY T 84 H M IGNIFICANT IGNIFICANT ROJECT S S EARS P see see also ERVICE ., I ,Y S .&U.S.N ONG PANNING EPORT [Vol. 14 14 [Vol. S C NST R I 86 D note 84; 84; note XPOSED TO ISEASE E D ILITARY INAL INAL supra ,103 ESSONS M ., (among other reports reports other (among –F ESEARCH 85 note 5 (declassifying Operation Operation (declassifying 5 note ?L FFAIRS .R A supra ASTLE ED , 83 S C EALTH ’ CCIDENTALLY M ) 6/17/2013 5:29 PM H A ISEASE TO S ’ RONKITE RONKITE ET AL GENCY ELETE ADIOLOGICAL D D AVAL AVAL A C ETERAN R EINGS V OT B PERATION N ., N ETERAN O V ., O ON ON . UCLEAR available at available AB UMAN UMAN L .N H see see generally OMM ; EF D (1954), .MACROS (D ADIOLOGICAL ADIOLOGICAL S. C MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE EFENSE R RONKITE RONKITE ET AL D It stated: stated: It AZARDOUS TO 82 ESPONSE OF note 18, at 129-47. at 18, note P. C H at 7 (citation omitted). omitted). (citation 7 at ADIATION ADIATION R ABATCHNICK TAFF TAFF OF R 7 1994). Print (Comm. Id. See generally .K See generally id. INKING INKING THEOF ANIFESTATION supra The declassification of the Operation “Castle” Report Epidemiological studies conducted over the latter half of the of the half latter the over conducted studies Epidemiological Department Department of criteria Defense, for which identified 29 identified bomb “specific problems” general as test-related participation.” biomedical for “legitimate basis “experiments” and Data obtained on some military personnel exposed to radioactive fallout were collected after these who were men were unintentionally exposed. atomic veterans However, believe they were some used as guinea pigs to determine the distances, effects including those at of ground zero, radiation subjects. on human from Their various suspicions document from are the Joint Panel on supported the Medical Aspects by a of Atomic 1951 Warfare, Research and Development Board, . L ., M 86 ATER ENTURY ADIOLOGICAL ESEARCH ALLOUT TUDY TUDY OF UBLISHED Operation “Upshot-Knothole” Reports IV. 84. E. 83. 84. 85. https://www.osti.gov/opennet/servlets/purl/16061854-leUIeE/16061854.pdf. 85. prepared during the Commission meticulously recorded testing the troop potential and radiation, movements, ionizing to members service the missions) of exposure showed that exposure. radiation related to ionizing concerns the A. Upshot-Knothole). S C R F L S 82. R 168 exposure. P ET AL twentieth twentieth century revealed that the deleterious effects of nuclear radiation can take decades to manifest, resulting in a variety of 33718-mqe_14-2 Sheet No. 16 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 16 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 17 Side A 07/02/2013 13:56:24 , : , 4 , 4 , 29 .53 Does ES EALTH R ON THE THE ON See, e.g. . ESEARCH Now, Now, ,H ADIATION R 90 note 26, at 26, note R S122 (Supp. (Supp. S122 L ’ OMM ., 815, 815, 818 C AT ES supra OUNCIL ADIATION ADIATION , C .R R ,N :BEIRV1-3(1996) ONIZING ONIZING I AFETY , 129 169 ADIOL REPAREDNESS R P See generally &S ESEARCH ADIATION ADIATION R R R EVELS OF L ’ , 53 J. L EALTH EALTH AT EALTH Incidence of Leukemia Physicians in of Leukemia Incidence .H OW OW ,N .H L UB ONIZING ONIZING ONIZING ONIZING I I ) 6/17/2013 5:29 PM Long-Term Radiation-Related Health Effects Effects Health Radiation-Related Long-Term note 5, at 16. 16. at 5, note NVTL note 69, at 621–23. at 621–23. 69, note .&P As time progresses and statistical statistical and progresses time As ELETE .E ED D 91 .A43,A44(2009);Nasrin Begum et al., al., et Begum .A43,A44(2009);Nasrin supra ADIATION , M Cancer and Non-Cancer Effects in Japanese Atomic supra R OT ASH , EVELS OF However, it was not until the early early the until not was it However, N ROT Influence of Dose Influence Rate Time for on 239PuO2- Survival XPOSURE XPOSURE TO L FFECTS OF W O E 88 to assess the long-term effects of of effects long-term the assess to Risk of Myelodysplastic Syndromes in People Exposed to E .P 93 GENCY OW OW Smoky OF OF A ISASTER ISASTER . L ONIZING ONIZING I ADIOL 428, 428, 431–34 (2011). (2011). 431–34 428, 428, NIV RADIOACTIVE VETERANS RADIOACTIVE , 5 D 5 , R U . 339 (1944). (1944). . 339 M. P. Little, Little, P. M. FFECTS OF .MACROS (D E UCLEAR IOLOGICAL IOLOGICAL NST B I initiating a host of new scientific studies. scientific new of host a initiating .N ,J. H. Diel et al., al., et Diel H. ,J. , 29 J. 89 FFECTS OF EF XPOSURE XPOSURE TO NCOLOGY Leukemia was quickly linked to radiation exposure exposure radiation to linked quickly was Leukemia E EALTH D Caldwell et al., E O 87 ABATCHNICK ANCER ANCER ,H See generally See See See, e.g. See generally .K C and monkeys and ON THE THE ON L . ’ 92 The long-term effects of ionizing radiation are difficult to for a review of several recently published studies. recently several aof forreview AT LINICAL C N OMM OUNCIL IOLOGICAL IOLOGICAL FFECTS OF UBLISHED in in a Unique Human Population: Lessons Learned Hiroshimaand Nagasaki from the Atomic Bomb Survivors of Induced Induced Radiation Pneumonitis or Pulmonary Fibrosis in Dogs Ionizing Radiation Influence Alzheimer’s Disease Influence Ionizing Alzheimer’s Risk? Radiation in the 1940s and 1950s. J. dogs methods become more sophisticated, epidemiologists will likely continue to find new links between radiological exposure and disease. study in animals, as the animal model selected must be able to live long enough for the disease to studies in have rats small like which lab rabbits, short animals or manifest. This precludes life spans. The studies must also be done in a large number of animals, due to the low incidence of disease and the variety of tissues affected. There have been some studies using beagle Ionizing Radiation: A Retrospective Cohort Study A of Bomb Ionizing Radiation: Atomic Retrospective Nagasaki Survivors J. Bio-9. Bio-9. See Evan generally B. Douple et al., C 87. 87. B E 2013] 2013] P (2012); Masako Iwanaga et al., C BEIR VII vii (2006) health of effects the BEIR findings VII] [hereinafter (summarizing and 1980s 1990s). in the studies initiated ray and gamma x-ray dose of low (reviewing (reviewing the significant development in radiation exposure knowledge). 89. 89. 90. diseases. Bomb Survivors 92. 92. 91. 91. 88. Paul S. Henshaw & James W. Hawkins, Hawkins, W. James & Henshaw S. Paul 2011), 88. 1980s that ionizing radiation was firmly linked to solid tumors and cancer, recent publications link ionizing radiation exposure diseases, to including many cardiovascular, respiratory, and diseases, digestive avascular myelodysplastic syndromes. necrosis, Alzheimer’s disease, and M K C Y 33718-mqe_14-2 Sheet No. 17 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 17 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 17 Side B 07/02/2013 13:56:24 M K C Y ., ., 94 OSE OSE 241– .883 .883 MTY D ERVS S .C ERSP P CIS S available at UMAN UMAN ORWARD Radiation Radiation ee also generally F Reviewof Atomic 97 OARD OARD ON &H EALTH B ATH [Vol. 14 14 [Vol. 74 (describing (1994) ORENSIC ORENSIC .H F EALTH :AP However, this data data this However, H NVTL 96 DVISORY URVIVAL TATES S T OF S ’ ’A EP , 105 E EEDS OF THE N LOBAL available at at available NITED U Epidemiologic Studies of Ionizing Radiation ) 6/17/2013 5:29 PM , U.S. D ETERANS .&G ED ELETE D OT , 1 M ROGRAM N note 17, at 101–07. 101–07. at 17, note P O note 14, at 10. 10. at 14, note at the V (Mar. 23-24, 2012), slide 10, 10, slide 2012), 23-24, (Mar. DENTIFYING THE DENTIFYING I CIENCE IN THE S supra 238ed. (12th 2011), supra ON ON . ., EETING YS M .MACROS (D OXICOLOGY OXICOLOGY DTRA, DTRA, .S OMM MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE T ORENSIC PowerPoint: John D. Boice, Jr., Slide Presentation, Presentation, Jr., Slide D. Boice, John PowerPoint: L F ’ , C DUC AT ARCINOGENS .E Limits of Epidemiology N C 95 ABATCHNICK See also EVIEW EVIEW OF MP See, e.g. See .K Identifying radiological diseases in the human population is diseases in is the human radiological population Identifying ECONSTRUCTION EPORT ON TRENGTHENING TRENGTHENING UBLISHED Steve Wing, (Supp. (Supp. 4 1997), for a review of the epidemiological methods used. S Veterans Veterans Epidemiology Study and and Cancer: Past Successes and Future Challenges 96. See generally Jonathan M. Samet, Samet, M. Jonathan generally See 96. 97. discipline). as a epidemiology 97. http://www.vbdr.org/meetings/2012/Presentations/1-Boice_VBDR_Mar12.pdf http://www.vbdr.org/meetings/2012/Presentations/1-Boice_VBDR_Mar12.pdf (reporting that of 115,328 atomic veterans surveyed, the VA of death). causes remainder unknown are the 69%), (or 80,186 only data on has epidemiological Also, Also, organs have unique sensitivities to radiation, tissues and some (e.g., lung, radioactive particles. This liver, results in these organs kidney, receiving larger a dose and of radioactivity, bone) lifetime. delivered over concentrate the course of a R S R 93. (1992). 93. 170 plutonium inhalation. In these studies, animal health has been evaluated over a few years, but the studies have utilizing only a been handful of animals in each small, study. Additionally, the types of radiation (and how the radiation gets to the tissue) complicate these studies. For example, alpha radiation does not penetrate tissue well, traverse unlike through inches of gamma tissue and affect radiation, tissue deep body, making for in a which difficult assessment of the disease progression. can P is often erroneous or incomplete. If death and medical records are found they are subject to misdiagnosis and limited medical knowledge by at the time the they were recorded. 95. R 95. 94. E http://ntp.niehs.nih.gov/ntp/roc/twelfth/profiles/IonizingRadiation.pdf(listing animals). experimental various 94. challenging for the scientific community, as the research requires requires research the as community, scientific the for challenging longitudinal epidemiological studies. Scientists retrospectively analyze medical and death records, then findings with the estimated radiation dose. they correlate these 68 (2009). 33718-mqe_14-2 Sheet No. 17 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 17 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 18 Side A 07/02/2013 13:56:24 , ETERANS ETERANS V V note 93, at at 93, note VALUATION note 26, at at 26, note E VALUATION OF supra supra ON ON , . , OSE ROCESS FOR D OMM P AFETY 171 C ROCESS ROCESS FOR ROGRAM P P &S AKING See also -M These epidemiological epidemiological These AKING EALTH 98 ADIATION -M Additionally, the potential potential the Additionally, .H R OXICOLOGY OXICOLOGY T 101 ECISION ) 6/17/2013 5:29 PM L ’ D susceptible susceptible than the old; females are more NVTL ECISION AT ELETE However, little hard data was was data hard little However, .E D D N 103 OT ASH note 96 (discussing problems with and limitations limitations and with problems (discussing 96 note N note 17, at 3, 30. 30. 3, at 17, note ISABILITY ISABILITY W O For many years it was thought that a a that thought was it years many For note 84, at 15, 24. 24. at 15, 84, note STIMATING STIMATING D 99 See also note 90, at 10 (finding health risks associated with with associated risks health (finding 10 at 90, note E It is now accepted that there is a strong strong a is there that accepted now is It supra supra OF OF . ISABILITY ISABILITY supra 100 D ]. ., supra NIV RADIOACTIVE VETERANS RADIOACTIVE Wing, U .MACROS (D DTRA, DTRA, RESUMPTIVE RESUMPTIVE Thus, the full scope of the effects of radiation P ISABILITY 102 D BEIR VII, http://www.nap.edu/catalog/11908.html [hereinafter E [hereinafter http://www.nap.edu/catalog/11908.html RESUMPTIVE RESUMPTIVE at 10, 14–15. 14–15. 10, at ABATCHNICK RONKITE ET AL RONKITE EVIEW OF P Id. See generally See generally See .K ETROSPECTIVELY During During the nuclear weapons testing, it was known that a R RESUMPTIVE RESUMPTIVE UBLISHED MPROVING THE of epidemiological studies). of epidemiological 101. radiation). of low doses to exposure 101. 102. 103. C Bio-21–23. 103. exposure exposure has yet descendants. and families their and population to be realized by the B. Atomic Veteran studies are also subject to confounding variables (e.g., like cigarette lifestyle smoking or radiation exposure from medical x- rays), age at exposure, and gender, all of which complicate the analysis of the results. 99. 99. variety variety of radiation was released into the atmosphere and that participants were exposed to neutron, gamma, x-ray radiation, alpha, and beta particles. OF OF THE linear linear dose-response relationship, and even levels exposure of radiation to is dangerous. low P 98. R 98. 90–91, app. I-51–52 (Jonathan M. available Samet at & Catherine C. Bodurow eds., 2008), 2013] 2013] P this this misconception. low dose of changed has study radiation government a recent but disease, radiological did not increase a person’s risk for dose estimates are often based on assumptions, with little hard data supporting the dose estimate. I 100. 238. For example, the young are more tissue. or organ by differ risks and males; than susceptible 100. collected collected during the nuclear tests to assess radiation exposure. Only during the initial bomb blast was a portion of this for for intergenerational diseases has genetic been thought to be low, but has been demonstrated transmission in of animals. radiological M K C Y 33718-mqe_14-2 Sheet No. 18 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 18 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 18 Side B 07/02/2013 13:56:24 M K C Y 105 The methods methods The [Vol. 14 14 [Vol. 108 at vii. Id. The DTRA then reports to the the to reports then DTRA The ) 6/17/2013 5:29 PM 107 ELETE D OT N note 17, at 1. at 17, note note 17, at 70. 70. at 17, note O 109 supra supra .MACROS (D DTRA, DTRA, DTRA, DTRA, MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE However, most participants were not issued 104 The DTRA’s method for reconstructing radiation radiation reconstructing for method DTRA’s The at 69–123. 69–123. at 106 at 119–21. Doses are reported in unit "rem." in unit "rem." reported are Doses 119–21. at at 70. 70. at ABATCHNICK EVIEW EVIEW OF EVIEW EVIEW OF Id. Id. See id. Id. Id. .K The ability to reconstruct the radiation dose is difficult The Department of Defense (DOD) created the Defense . exposure, exposure, since they were not capable of recording inhaled, neutron ingested, doses or (although the Defense Nuclear Agency capability to currently has reconstruct the individual estimates of issued such doses), to were not most questionable readings of because they were shielded the during the detonation, participants and were in worn for only nuclear limited periods tests, detonation.). during and after often each nuclear provided (These film badges often provide an incomplete measure of radiation 109 UBLISHED 108. 108. badges, and these badges often provided incomplete data. incomplete provided often badges these and badges, 106. R 106. 107. 105. (1984) 2726 2725, Stat. 98 2, § 98-542, No. L. Pub. Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, no no systematic way to review earlier retroactively. changes dose estimates or apply used to estimate radiation dose have been revised many times since the first dose estimates were reported in 1978; and, there is dose uses existing raw data and assumptions that are input into mathematical formulas. Raw data used includes, for example, dosimeter data (gamma radiation detectors), bomb detonation data, records of troop and movements, records of environmental data including reports. weather 104. R 104. 172 radiation, the gamma radiation, recorded badges. by A the small dosimeter the measure to where number fewa participants to battlefield the around of these badges were gamma distributed radiation was distributed and movements. how it affected troop P because because the lack of raw data, quite naturally, attracts the need for many assumptions. profile emitted from Assumptions the bomb, the veterans’ location relative include to the radiation the radiation, the duration of the exposure, and theories about exposure. Threat Reduction Agency (DTRA) to assess veterans’ radiation service service member his or radiation her dose, and external upper bound radiation estimations. dose, internal 33718-mqe_14-2 Sheet No. 18 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 18 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 19 Side A 07/02/2013 13:56:24 111 173 115 Service members members Service 112 The NAS identified several several identified NAS The ) 6/17/2013 5:29 PM 117 ELETE D Thus, the radiation dose estimates estimates dose radiation the Thus, OT N 118 note 17, at 83–84, 86–101. 83–84, at 17, note Lastly, how the solider was physically physically was solider the how Lastly, O 114 Service members who were down in supra 113 RADIOACTIVE VETERANS RADIOACTIVE .MACROS (D Other assumptions used include, for example, DTRA, DTRA, 110 In 2000, Congress requested a review of the DTRA’s DTRA’s the of review a requested Congress 2000, In 116 at 66–68, 73–74. 73–74. 66–68, at 87–88. 82, 35, at 6–7. 1, at 124–231. at at 124–264. The reader is referred to the finding of the NAS committee at 69–123. 69–123. at at 34, 124–230, 367. 367. 124–230, 34, at ABATCHNICK EVIEW EVIEW OF Id. Id. Id. Id. Id. Id. Id. .K These assumptions make the dose calculation highly UBLISHED instances instances where the DTRA used methods that under-estimated veterans’ radiation dose. downwind downwind of the received explosion higher doses of inhaled radiation than service members were assumed to who were have upwind. likely 114. 114. 115. 116. 117. 118. regarding the numerous limitations related DTRA. the used by methodology to the dose reconstruction estimate positioned (sitting, standing, running) and his breathing pattern estimate. dose radiation the in is included It is also assumed that the service members who wore dosimeter badges wore them correctly, and the badge dog that devices would tags, or fromother by clothing, radiation was not shielded interfere with radiation detection. bunkers bunkers or trenches were assumed to have been protected from neutron and gamma radiation compared to those who stood up and watched the shot. 111. R 111. 112. (1984). 2726 2725, Stat. 98 2, § 98-542, No. L. Pub. Veterans’ Dioxin and Radiation Exposure Compensation 113. Standards Act, dose reconstruction program. In its 2003 report, Academy the of National Sciences (NAS) was highly critical of the methodology DTRA’s and assumptions. 110. 2013] 2013] P how how the radioactive particles human may body. distribute in, or on, the posture and position of the service member breathing rate, during and tissue susceptibility to each radiation exposure, type. dose – for it is these dose reconstruction estimates that the VA considers when evaluating whether a veteran service-connected should receive compensation for diseases. their non-presumptive speculative and, thus, material when evaluating a reconstructed M K C Y 33718-mqe_14-2 Sheet No. 19 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 19 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 19 Side B 07/02/2013 13:56:24 M K C Y ., ED M supra supra , 8(1996); 8(1996); OF OF . RESUMPTIVE EST Smoky, supra P T ROGRAM NST P ,I [Vol. 14 14 [Vol. EST UCLEAR UCLEAR However, the the However, T The few studies studies few The N 120 119 note 98, at app. I-52. I-52. app. at 98, note OXICOLOGY OXICOLOGY PIDEMIOLOGICAL PIDEMIOLOGICAL T VALUATION OF E UCLEAR L note 96 (describing possible possible (describing 96 note E ’ N supra , AT ROSSROADS ROSSROADS note 98, at app. I-59–61. I-59–61. app. at 98, note supra C The Crossroad studies are are studies Crossroad The ) 6/17/2013 5:29 PM 122 supra , ISABILITY note 18,at 1578; Caldwell etal., D ELETE Wing, ROSSROADS ROSSROADS D C OT N ISABILITY O D NTERPRETING THE NTERPRETING note 90, at 14–15; N 14–15; at 90, note I ARTICIPANTS IN THE RESUMPTIVE ON THE THE ON . P P Leukemia, supra supra note 18, at 77–78. For a general summary of all studies see studies all of summary general a For 77–78. at 18, note .MACROS (D OMM See also generally MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE RESUMPTIVE note 98, at app. I-61–63. I-61–63. app. at 98, note ETERAN The NAS carefully points out that “[g]iven these these “[g]iven that out points carefully NAS The P 123 supra V 121 ., BEIR VII, supra at app. I-59. I-59. app. at , ABATCHNICK VALUATION OF See Id. .K OLLECTING AND Linking Linking radiological diseases to radiation exposure during Based on the existing epidemiological data, there is no C ATA ORTALITY ORTALITY OF ISABILITY HAUL ET AL VALUATION OF UBLISHED 121. 121. note 69, at 624; C 123. 123. of Crossroads Atomic between radiation Veterans exposure and suggest leukemia. some correlation E note 93, at 238. M D 119. For a comprehensive list of ionizing radiation epidemiological papers papers epidemiological radiation ionizing of list comprehensive a For 119. considered by the Institute of Medicine, see 174 that the VA relies upon inadequate. to award However, benefits the are VA known continues calculations to to be in rely upon evaluating these statutes. in the outlined not specifically diseases service-connection for radiogenic C. D P based based on a small number demonstrate of the veterans, and small it number populations. is of difficult to excess cancers in small 122. E alone). radiation by caused cancer was whether determining in factors confounding 122. T probability probability that an individual’s cancer was a result of radiation cancer, of type the including factors, many on depends exposure the tissue affected, age at exposure, individual. and other factors of the other other epidemiological studies.” uncertainties uncertainties of the data on veterans, a negative or inconsistent finding cannot be taken as definitive evidence against a causal connection, in the face of the wealth of positive evidence from military military service is confounding variables additionally associated and the of estimates nature dose the service-connected radiation challenging, with due a to lack the of reliable 120. Caldwell et al., al., et Caldwell 120. doubt that radiation exposure causes cancer. 33718-mqe_14-2 Sheet No. 19 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 19 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 20 Side A 07/02/2013 13:56:24 126 In In 125 VALUATION OF E EGULATIONS ., &R 175 See also GMT .M Nuclear Detonation: Weapons, AWS ED :L M ) 6/17/2013 5:29 PM MERGENCY E ELETE D OT note 17, at 8, 227, 258. 258. 227, 8, at 17, note N OMPENSATION O note 98, at app. I-52. I-52. app. at 98, note ’C ADIATION ADIATION supra This is because each of the nuclear bomb , R supra 124 , .13,147–49(1984) (statement of Sen. Cranston). Cranston). Sen. of Montgomery). Rep. (statement of (statement .13,147–49(1984) (1984) .29,551 RADIOACTIVE VETERANS RADIOACTIVE OMPENSATION EC EC .MACROS (D DTRA, DTRA, C 128 .R .R ETERANS U.S. Dept. of Health & Human Serv., Serv., Human & Health of Dept. U.S. V ISABILITY ONG ONG D The claims were denied based on the lack of e.g., Direct service-connection can be established by by established be can service-connection Direct , ABATCHNICK 127 EVIEW EVIEW OF 129 Id. See .K TOMIC TOMIC ECEIVING Of the 1,646 claims related to radiation exposure processed Veterans can show entitlement to benefits on a direct basis if basis a direct on to benefits entitlement show can Veterans A RESUMPTIVE UBLISHED the analysis of epidemiological Additionally, studies not all of cancers in a service radiation-exposed individual members. service. military result their of are a by the VA in the 1970s and early 1980s, only 30 were granted; other other words, detonation of the Shot “Badger” exposed service members to a different radiation profile and strength than the detonation of the Shot Baker. variety of radiation (alpha Veterans and beta were particles, gamma, neutron exposed complicate factors exposure routes. These and and doses, x-ray), to a that their cancer or chronic disease is service-related, Congress recognized the compensation. need for legislation to aid veteran epidemiological epidemiological data linking radiation exposure with specific diseases. Because of the numerous associated uncertainties with estimating individual exposure and calculating the probability A. 128. 130 C 130 127. 128. 125. 125. Devices Nuclear Improvised 945 (or 57%) of the cancers. denied claims were for solid tumors or 124. R 124. P 2013] 2013] P the evidence establishes service. that the disease was incurred in V. R radiation radiation exposure. 126. 130 C 130 http://www.remm.nlm.gov/nuclearexplosion.htm(last Dec.updated21, 2012). 126. 129. 38 C.F.R. § 3.303(d) (2011). (2011). 3.303(d) § C.F.R. 38 129. missions had different detonation routes and strengths, resulting resulting and strengths, routes detonation different had missions in distinct decay schemes and radiation emission profiles. M K C Y 33718-mqe_14-2 Sheet No. 20 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 20 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 20 Side B 07/02/2013 13:56:24 M K C Y 131 It is Also, Also, 135 134 , [Vol. 14 14 [Vol. USTICE J OF . EPT , D ) 6/17/2013 5:29 PM ELETE D OT N O 133 common/reca.html (last updated Jan. 14, 2013). 2013). 14, Jan. updated (last common/reca.html .MACROS (D MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE VDRECSA awards compensation only if a 136 However, in the absence of solid epidemiological epidemiological solid of absence the in However, and RECA. 130 132 ABATCHNICK See Radiation Exposure Compensation Act Id. .K Originally, veterans who were exposed to ionizing radiation to were exposed ionizing who radiation veterans Originally, VDRECSA VDRECSA and REVCA claims are reviewed by the VA. In UBLISHED the DOJ does not require claimants to establish causation. VDRECSA and REVCA Veterans required. is planning careful Administration claims, so had to file VDRECSA. for compensation under the strict terms of also important to note that compensation claim from a can RECA DOJ adversely affect the potential compensation from REVCA, 133. Radiation Exposure Compensation Act, 42 U.S.C. § 2210 note (2006) (2006) note 2210 § U.S.C. 42 Act, Compensation Exposure Radiation at 38 C.F.R. (codified (1988) 534 102 Stat. No. Pub. 100-322, L. [OR] 485 102 Stat. 321, (2006)). 1112(c) § U.S.C. 38 at amended as and (2011) 3.309(d) § 133. 2000). (amended 134. 131. Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, Act, 100- No. L. Standards Pub. 1994). Cir. 1988, of Compensation (Fed. Act 1043 Exposure 1039, Compensation F.3d Radiation 34 and Veterans Brown, Dioxin v. Combee Veterans’ Radiation-Exposed 130. 131. (2000)). 1154 § U.S.C. 38 at part in (codified (1984) 2725 Stat. 98 98-542, No. L. Pub. 132. 176 “show[ing] that the disease or malady was incurred during or aggravated by service,” a task burden which of “includes tracing the causation difficult to service.” a condition or event during P 135. http://www.justice.gov/civil/ 135. 136. Pub. L. Veterans’ No. 98-542, 98 Stat. 2725 (1984) Dioxin (codified in part at 38 and U.S.C. § 1154 (2000)). Radiation Exposure Compensation but the directs VA to This adopt regulations does statute presumptions not contain Standards Act, radiation. to have exposed assist who been that veterans would veteran’s veteran’s disease is “likely” or “as likely as not” the result of “radiological “radiological diseases.” These laws include: VDRECSA, data, this was a preclusive claims. hurdle In for response, Congress most passed three Atomic additional statutes Veteran that addressed compensation for radiation veterans who exposure experienced during service and have manifest contrast, contrast, RECA claims are reviewed by the DOJ lump sum and payment to veterans “who award contracted certain cancers a and other serious diseases following their exposure to radiation tests.” weapons nuclear atmospheric the during released 33718-mqe_14-2 Sheet No. 20 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 20 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 21 Side A 07/02/2013 13:56:24 , ELECTED 26–27 (2008). (2008). 26–27 138 EATH EATH D ., RL 33927, S 177 ERV S NJURY OR This law requires that a a that requires law This I 143 and now the legislation legislation the now and 137 142 is or hepatitis B is indicated).). indicated).). is B hepatitis or is ESEARCH ) 6/17/2013 5:29 PM es are: leukemia (all forms except HYSICAL .R P ELETE ONG D OT ., C N O Veterans Veterans Nuclear PanelExposure Underestimated, Says AL . ROGRAMS FOR This shifts the burden of proof to the VA, VA, the to proof of burden the shifts This P 141 RADIOACTIVE VETERANS RADIOACTIVE A dose reconstruction is not required or or required not is reconstruction dose A ISTER ISTER ET .MACROS (D 140 A. L Under the presumptive service-connection scenario, scenario, service-connection presumptive the Under Matthew L. Wald, , May 9, 2003, at A20 (stating that of 4,000 claims submitted under the OMPENSATION ABATCHNICK 139 ARAH C See .K Id. Id. Id. 38 U.S.C. § 1112(c)(2) (2006). IMES The legislation has removed one encumbrance faced by In 1988, Congress passed the REVCA, which established a . T (The 21 cancers presumed participated in to radiation-risk be activiti service-connected chronic lymphocytic for leukemia); cancer veterans of who the esophagus, thyroid, stomach, breast, small pharynx, intestine, pancreas, bile salivary gland, ducts, urinary gall tract (renal bladder, pelvis, urethra, urinary urethra), bladder, and brain, disease); (other Hodgkin’s than lymphomas myeloma; multiple carcinoma; bone, lung, cirrhos if (except cancer liver primary and colon, and ovary; bronchiolo-alveolar 143 EDERAL UBLISHED the veteran has to establish service during one of the specified atomic missions and have one of the radiological diseases listed in the statute. recognizes over 21 radiological cancers. radiological 21 over recognizes veterans veterans seeking compensation, and few presumptive service- F 137. 38 C.F.R. § 3.311 (2011). (2011). 3.311 § C.F.R. 38 137. 138. N.Y. 2013] 2013] P dose reconstruction and evaluation be conducted on behalf the of veteran. compensation under these criteria, Few as it is difficult to veterans establish service-connection have between been the data. epidemiological existing the and dose, radiation able disease, to the receive reconstructed cancers. presumption presumption of service-connection for thirteen specific exposure to radiation while inservice. while exposure to radiation as they must prove that the disease is not service-connected in order to deny benefits. In 1992, two new cancers were added to the presumptive list in the statute, 140. 38 C.F.R. § 3.309(d) (2011). (2011). 3.309(d) § C.F.R. 38 been awarded).50 have only statute, non-presumptive S 139. (1988). 485 485, Stat. 102 2, § 321, Radiation-Exposed Veterans Compensation Act of 1988, Pub. L. No. 140. 100- 141. 142. considered considered for a presumptive statute service creates disease. a rebuttable Instead, service-connected. presumption the that the disease is See also M K C Y 33718-mqe_14-2 Sheet No. 21 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 21 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 21 Side B 07/02/2013 13:56:24 M K C Y 146 L. J. A A 11 Vet. , LDER 147 , 13 E The 1973 Fire, [Vol. 14 14 [Vol. Despite the the Despite , www.archives.gov/st- 144 note 98, at 54, 72. 72. 54, at 98, note RCHIVES supra , A L ’ ) 6/17/2013 5:29 PM AT ISABILITY on Our Chance to Fix System the Chance Our on D ELETE , N D OT N O The Inability of World War II Atomic Veterans to Obtain RESUMPTIVE P is Running Out Out is Running 145 .MACROS (D MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE Davis v. Brown, 10 Vet. App. 209, 213 (1997); Hardin v. West ABATCHNICK VALUATION OF See .K E Radiation-exposed Radiation-exposed veterans who do not suffer from one of . disease disease that may be induced by ionizing radiation and following: shall include the (i) (lymphocytic) leukemia; (ii) Thyroid All cancer; (iii) Breast cancer; (iv) Lung forms cancer; (v) of Bone Esophageal cancer; leukemia cancer; (ix) Stomach cancer; (vi) (x) Colon except cancer; (xi) Liver cancer; Pancreatic (xii) Kidney cancer; chronic cancer; (xiii) (vii) Urinary bladder gland cancer; lymphatic (xv) Multiple cancer; myeloma; Skin (xvi) Posterior (xiv) subcapsular cataracts; Salivary cancer; (xvii) (viii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors system; of (xxi) the brain Cancer Anycancer.). other and (xxiv) cancer; Prostate (xxiii) disease; Hodgkin's and of central nervous the rectum; (xxii) Lymphomas other than (For (For purposes of this section the term “radiogenic disease” means a 144 UBLISHED 145. Melinda F. Podgor, Podgor, F. Melinda 145. Time Disability Benefits: the statutorily-defined presumptive diseases must resort to the or the the by VDRECSA requirements outlined non-presumptive direct service-connection regulations under 38 diseases” of“radiogenic a group identifies VDRECSA 3.303(d). C.F.R. Section 147. 147. 146. 38 C.F.R. § 3.311(b)(2) (2011) (2011) 3.311(b)(2) § C.F.R. 38 2013). 14, Jan. visited (last louis/military-personnel/fire-1973.html 146. period, the VA is required to assess the size and dose nature radiation of the that the veteran may have received. and criteria by which the consider service-connection. Under By Secretary identifying particular diseases for Benefits as will radiogenic, the regulation relieves the veteran of the need to show that the in-service exposure to ionizing radiation precipitating factor was for a the disease. When a veteran manifests one of these “radiogenic diseases” within any applicable time 178 connection claims have been rebutted. P 519, 519, 533–34 (2005). For example, on July 12, 1973, a fire at the National Personnel Records Center (NPRC) destroyed approximately 16-18 Personnel million Files, Official including Military 80% of National army veterans’ Personnel from WWII. Records Center presumptive diseases that have been established, many veterans still have difficulty veterans establishing are unable service-connection. to furnish the exposure at required a location and specified time, These in evidence part, because such of their information may be classified as secret or their service records are unavailable. 33718-mqe_14-2 Sheet No. 21 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 21 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 22 Side A 07/02/2013 13:56:24 148 . 179 ) 6/17/2013 5:29 PM ELETE D OT N O By requiring the involvement of the the of involvement the requiring By 149 RADIOACTIVE VETERANS RADIOACTIVE .MACROS (D ABATCHNICK .K Under Under 38 C.F.R. Section 3.311(e) the VA is required to (4) The veteran’s age at time of exposure; of at time age veteran’s (4) The (5) The time-lapse between exposure and onset of and disease; the (6) The extent to which exposure to radiation, or other outside carcinogens, of service may have contributed to (1) The probable dose, in terms of dose type, rate duration as and a factor in inducing the disease, taking into account any devices known limitations employed estimation; in its employed methodologies in in the (2) dosimetry The its relative sensitivity induction, of measurement the involved by tissue or pathology; to ionizing the radiation, history; family and pertinent gender veteran’s (3) The of the specific UBLISHED The Under Secretary for Benefits considers various factors and may request an opinion from the Under Secretary for Health or an outside consultant before ultimately determining whether “it is at least as possibility, likely as the not, or veteran’s exposure in that service.” disease there is resulted no reasonable from radiation App. 74,79 (1998); Ramey v. 9 Brown, Vet. App. 40, 43 (1996) 2013] 2013] P radiation dose dose radiation estimate from the DOD and other information is then to forwarded the Under Secretary for Benefits for review. According According to 38 C.F.R. considered in determining whether a Section veteran’s disease resulted 3.311(e), include: service in radiation to ionizing exposure the from factors to be Under Under Secretary for harmonize decision-making and give the Benefits, veteran the benefit of the the regulation most current scientific attempts and medical diseases. to studies of radiogenic consider the upper bound calculation claims. in assessing radiation presumption Under of these diseases” if the VA Under Secretary for Benefits determines that service-connection regulations, there of they are is related to other ionizing radiation a exposure during service. “radiogenic rebuttable 149. 38 C.F.R. § 3.311(c)(2) (2011). (2011). (2011). 3.311(c) 3.311(c)(2) § § C.F.R. C.F.R. 38 38 148. 149. M K C Y 33718-mqe_14-2 Sheet No. 22 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 22 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 22 Side B 07/02/2013 13:56:24 M K C Y note 22, slide 6 (In (In 6 slide 22, note LAIMS [Vol. 14 14 [Vol. C For instance, one one instance, For supra 151 This is an increase in 154 VALUATE E Flohr 2010, and ) 6/17/2013 5:29 PM The VA, however, is legally legally is however, VA, The 150 152 AW TO AW TO ELETE D L OT N O note 22, slide 4; note 22, slide 4. 4. slide 22, note Unfortunately, the rate of success for for success of rate the Unfortunately, 155 supra supra .MACROS (D supra MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE NTERPRETSTHE at § 3.311(b)(3). 3.311(b)(3). § at ABATCHNICK VA I Id. Id. .K 153 If a claim is filed based on a disease that is not listed above, For claims that fall within the statutory presumptive HE development of the disease. ofthe development “sound “sound medical evidence” means observations, findings or which conclusions are consistent reasonable and as logical to serve as the basis of of management a medical with current condition. medical knowledge and are so “Sound “Sound scientific evidence” means observations, findings, or conclusions which are statistically significant, are and capable of epidemiologically replication, and valid, withstand peer are review, and statistically at § 3.111(c)(3). 3.111(c)(3). § at UBLISHED 2011, 2011, 1,968 claims were granted and 3,683 denied; and, in 2010, 1,648 claims were granted and 2,918claims denied). the “VA shall provisions of this section provided that the has claimant nevertheless cited or consider the submitted claim competent scientific under or the medical claimed condition is evidence a radiogenic disease.” that the 154. Flohr 2012, 2012, 2011, Flohr Id. Flohr 152. 153. 154. 155. 151. 38 C.F.R. § 3.311(b)(4) (2011). The statute goes on to explain that: that: explain to on goes statute The (2011). (2011). 3.311(e) 3.311(b)(4) § § C.F.R. C.F.R. 38 38 150. 151. 180 P required to consider a service-connection claim for polycythemia for polycythemia claim service-connection a required to consider vera based on submits competent medical or exposureas scientific radiation evidence to support the long as claim. the claimant disease disease that the VA has disease determined is not polycythemia vera. to be a radiogenic compensated compensated claims compared with the fiscal years 2009-2010 and 2010-2011. Veterans Advisory Board on Dose Reconstruction reported that of 7,715 adjudication, only 2,210 REVCA were granted. and VDRECSA claims accepted for legislation legislation of straightforward. However, veterans have nonetheless struggled REVCA, compensation to receive compensation. should During be fiscal year 2011-2012, fairly the B. T 33718-mqe_14-2 Sheet No. 22 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 22 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 23 Side A 07/02/2013 13:56:24 1 1 ECONSTRUCTION However, However, R 156 OSE D 181 N Review of Atomic Veterans Murphy Murphy v. Derwinski, , 2 Vet. App. 492, 494– O It is important to note note to important is It 158 OARD B Board of Veterans’ Appeals Decisions 160 This is a fairly low standard; standard; low fairly a is This ) 6/17/2013 5:29 PM 159 DVISORY ELETE , http://www.index.va.gov/search/va/bva.html , http://www.index.va.gov/search/va/bva.html D ’A Espiritu v. Derwinski Rucker v. Brown, 10 Vet. App. 67, 70–71 (1997) (1997) 70–71 67, App. Vet. 10 Brown, v. Rucker OT available at available N See note 17, at 252. at 17, note and, in 2011 claim rejections included included rejections claim 2011 in and, O FFAIRS A 157 ETERANS supra RADIOACTIVE VETERANS RADIOACTIVE .MACROS (D ETERANS DTRA, DTRA, V , at the V T ,5 Vet. App. at 93; 93; at App. Vet. ,5 ’ EP D U.S. Dep’t of Veterans Affairs, Affairs, Veterans of Dep’t U.S. at 252—53. 252—53. at ABATCHNICK EVIEW EVIEW OF (Mar. 23, 2012), slide 10, 10, slide 2012), 23, (Mar. See Id. .K U.S. VDRECSA non-presumptive disease claim rejection is based 95 (1992).). (1992).). 95 claim claim that is “a plausible claim, one which is capable of meritorious substantiation. on Such a its claim own need not or be conclusive, but only possible to satisfy the initial burden of § [5107(a)].” Vet. App. 78, 81 (1990). medical Where etiology or the a determinative medical issue diagnosis, competent involves medical required either evidence is to fulfill determinative issue is factual in nature, may lay by suffice testimony itself. the well-grounded-claim See requirement; Grottveit where the (The Court has interpreted this burden as the necessity of submitting a EETING UBLISHED Search, 160. 160. sufficient sufficient to justify a belief, by a fair and impartial that the individual, claim is well grounded. that the veteran has the initial burden of proof, and that a person and that proof, of a burden person the initial has the that veteran who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence VDRECSA non-service presumptive disease claims are thought to be rarely awarded; 158. PowerPoint: John Lathrop, Slide Presentation, Presentation, Slide Lathrop, John PowerPoint: 157. 158. Demographic Study 159. 38 U.S.C. § 5107 (2006). (2006). 5107 § U.S.C. 38 http://www.vbdr.org/meetings/2012/Presentations/2-Lathrop_VBDR_Mar12.pdf. 159. 156. R 156. M 2013] 2013] P (search “radiation exposure and related decisions”) (last updated Jan. 17, 2013). 17, Jan. (last updated and related decisions”) exposure “radiation (search many skin, prostate, and rectal cancers. VDRECSA VDRECSA non-presumptive disease claims cannot be estimated because the VA does not keep these records. and, most claims are considered determined to to meet be this well standard denied grounded. and when the Nevertheless, Under claims One evidence. need to only Secretary the visit Board of Appeals Veterans are of Benefits evaluates website the and search the terms “radiation decisions” to exposure ascertain the volume of radiological disease claims and related denied. have and BVA VA that the primarily primarily on the way in which the VA considers the six factors outlined in 38 C.F.R. Section 3.311. Unfortunately, these factors provide a plethora of ways in which the VA can deny service- M K C Y 33718-mqe_14-2 Sheet No. 23 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 23 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 23 Side B 07/02/2013 13:56:24 M K C Y 4 4 , ., 98- IMITS IMITS L ERV 163 S NACTS E ESEARCH The DTRA DTRA The [Vol. 14 14 [Vol. .R 161 ONGRESS ONGRESS ONG 1166 (2010). (2010). 1166 :C note 98, at 332 (finding that that (finding 332 at 98, note ,C EALTH supra ed. Cir. 1997); Farris v. Principi NOOK , .H LLNESSES I UB W. S ) 6/17/2013 5:29 PM .J.P ISABILITY M D ENNIS ELETE ELATED ELATED D -R 10 Vet. App. 67 (1997). (1997). 67 App. Vet. 10 , OT , 100 A 100 , N note 17, at 3—4. 3—4. at 17, note O MOKING supra S RESUMPTIVE P as articulated by the Department of Health Health of Department the by articulated as 165 .MACROS (D DTRA, DTRA, MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE (1998); Claims Based on the Effects of Tobacco Products, 66 Fed. Fed. 66 Products, Tobacco of Effects the on Based Claims (1998); ,Energy Employees Occupational Illness Compensation Program Program Compensation Illness Occupational Employees ,Energy lose and discuss what “other” medical and scientific information it , Ramey , v. Ramey (F 1239 Gober, 120 F.3d In other words, the VA does not consider that the If the service member was a smoker, the VA will will VA the smoker, a was member service the If 164 ETERANS AND 162 ABATCHNICK EVIEW EVIEW OF VALUATION OF See, e.g. See, e.g. .K In many cases, where a veteran suffers from more than one OMPENSATION EPW, V C UBLISHED 165. 165. Act, 42 U.S.C. §§ program 7384q(b), to provide 7384s a (Supp. lump cancer illnesses (i.e. from suffering designated to sum employees covered 4compensation payment 2006) of $150,000 (establishing and a medical resulting from benefits compensationradiation exposure, chronic as beryllium disease, or silicosis) incurred as a result of their while exposures in the of performance duty for the Department Vet. App 6 (1993); Rucker v. Brown Rucker (1993); Vet.6 App contends, contends, and the VA obviously supports the proposition, that most Atomic only Veterans received a small amount of radiation – an amount lower than diseases. that required to cause radiological 373 164. 164. 163. The Transportation Equity Act for the 21st Century (TEA-21) (1998) (1998) (TEA-21) Century 21st the for Act Equity Transportation The 163. allow to as so misconduct" "willful as members service by use tobacco characterized the VA to deny service-related connection of smoking-related illnesses. The reader is referred, generally, to the following references that outline the interesting history D legislation: this to related issues and disease disease claims, manifestation manifestation of more than one cancer or radiological suggests disease radiological causation for both radiological evaluate agencies diseases. other the in way which to contrast This is in 161. E 161. often often deny the claim based on the fact that the veteran smoked, asserting that smoking may be as exposure. radiation service-related as disease radiological likely to contribute to the 182 connection to a disease. Often, the VA citing will reject that a the claim by DTRA dose support reconstruction service-connection, estimate even does when not estimates many of were these calculated dose based on theory. P TO the the “VA (1) R has no formal thoroughly published disc rules governing this process, (2) considered, does not and not granted.”). or was was presumption a why of explanations (3) publishes 162. abbreviated and insufficiently informative Reg. 18,195 (Apr. 6, 2001) (to be codified at“Willful 38 Misconduct”: C.F.R. How pt. the 3); U.S. Naphtali Government Offen Prevented et Tobacco-Disabled al., Veterans From Obtaining Disability Pensions type of cancer and/or radiological disease, the claim is without denied considering the increased probability causation. of radiological 33718-mqe_14-2 Sheet No. 23 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 23 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 24 Side A 07/02/2013 13:56:24 ETERANS AND V 166 183 MERICAN A HE ., T M A available at ) 6/17/2013 5:29 PM ELETE D OT ETERANS FOR 79 (2007), 79 (2007), N O UIDE The claim can only be denied if a G 167 RADIOACTIVE VETERANS RADIOACTIVE .MACROS (D URVIVAL URVIVAL S ABATCHNICK .K The The number and nature of denied claims is truly The way in which the claims are assessed is evidence that determining determining the probability caused that each by Department cancer of radiation was Labor] statistical will independently, procedure perform [Interactive following an DOL additional the determine RadioEpidemiological [the the use probability cancers was caused that of by the Program] radiation. at This approach is IREP least important to the because claimant it would determine a one to of higher the probability individually. cancer either for determined of causation than would be Employees Employees diagnosed with cancers two also raise or probability of a causation. more Even special under primary the that the assumption biological mechanisms issue by which each cancer is for determining caused are unrelated, uncertainty estimates about the level of radiation delivered to each cancer site will related. be While requires statistical training, the has consequence simple fully understanding but important implications. Under this rule, instead this of situation ERVICEMEMBERS UBLISHED astounding, astounding, considering the legislative intent and governing framework presumptive as well as non-presumptive claims preponderance preponderance of the evidence is against the claimant. examples are but These a few of the common ways in which the VA uses the factors in 38 C.F.R. application of the benefit-of-the-doubt Section standard under 38 C.F.R. 3.311 to circumvent the claims. radiation for compensation 3.301 toSection deny http://www.nvlsp.org/images/products/survivalguide.pdf. http://www.nvlsp.org/images/products/survivalguide.pdf. 166. Guidelines for Determining the Probability of Causation Under the Energy Energy the Under Causation of Probability the V Determining (2011); for 3.311 § Guidelines C.F.R. contractors, vendors, and subcontractors). of its certain and (‘‘DOE’’) of Energy 38 166. Employees Occupational Illness Compensation Program Act of 2000, 67 81). pt. C.F.R. 42 Fed. at codified (to be Reg. 2002) 2, (May 22,298 22,296, 167. S 2013] 2013] P and Human Services: Services: Human and proof under 38 C.F.R. Section 3.301. consider all the The evidence, and VA assess whether is it required is likely “at to least as as not” that the radiation veteran’s disease exposure. is connected to the the VA does not apply the benefit-of-the-doubt standard of M K C Y 33718-mqe_14-2 Sheet No. 24 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 24 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 24 Side B 07/02/2013 13:56:24 M K C Y ST ,101 The The ETERANS V 169 CCIDENTS A Nehmer Nehmer v. U.S. TOMIC TOMIC [Vol. 14 14 [Vol. ,A UCLEAR . 641, 642 (May 20, 1988). 1988). 20, (May 642 . 641, N OC 171 .D RES ONTGOMERY .P ) 6/17/2013 5:29 PM . 100-235, at 8 (1987). 8(1987). at 100-235, . O )M OMP ATASTROPHIC C C ELETE .N D EP ONNY “[T]he House Veterans’ Affairs Affairs Veterans’ House “[T]he OT N EEKLY 168 O N ON , 712 F. Supp. 1404 (N.D. Cal. 1989), the ’ However, by passing the presumptive presumptive the passing by However, 170 OMM 1987, H.R. R C G.V.(S . 100-235, 10–11. at 8, .MACROS (D O MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE CT OF .N A EP R ABATCHNICK RESIDENTIAL RESIDENTIAL See generally .K ., added). (emphasis E app. 1990) Print (Comm. The VDRECSA non-presumptive disease legislation has permitting permitting veterans to receive benefits funded through veterans programs which bear no relationship to their service. military former Instead, the Act gives due recognition for the unusual service rendered by Americans military who activities participated in involving generated by the detonation of atomic explosives. The exposure Nation to radiation is enactment grateful of for H.R. welfare. their for concern continuing 1811 their makes special clear service, the Nation’s and Enactment Enactment of this judgment legislation that does service-related not veterans covered radiation by the Act in represent fact caused any disease, exposure a of nor does it represent endorsement of a principle of OMPENSATION OMPENSATION ONG UBLISHED VA was concerned that the would require REVCA the presumptive VA to legislation compensate for cancers, only a handful of which an being potentially caused by the estimated 32,010 radiation exposure. disease legislation, Congressional intent clearly disease supported broad Congressional legislation, compensation. In signing the bill (H.R. 1811), President Ronald stated: Reagan 171. Compensation Presidential Act of 1988, 24 W Statement on Signing the Radiation-Exposed Veterans 170. H.R. 170. 168. 168. C C 184 adjudication. legislation In there was little passing scientific legislation – evidence only the statistical data of to REVCA excess cancer mortalities support the presumptive related disease to participants leukemia was used. among atmospheric weapons test P Committee concluded that exposure there data, and decided to concentrate was on the likelihood of a association between lack cancers and of radiation exposures.” definitive 169. P 169. dioxin dioxin diseases suffered by Vietnam Veterans. In Veterans’ Administration also been interpreted to support broader compensation for 33718-mqe_14-2 Sheet No. 24 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 24 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 25 Side A 07/02/2013 13:56:24 ST CT 174 A ,101 ISABILITY ISABILITY D ., R 41405, (statement ENEFITS Atomic Atomic FFAIRS B A ERV 177 S ERVICE ERVICE S ETERANS 185 V (1984) .29,551 ESEARCH court holding: holding: court EC .R ON ON . IETNAM IETNAM .R ONNECTION ONNECTION AND V ONG C ONG OMM Nehmer In subsequent legislation subsequent In ., C S. C 173 ) 6/17/2013 5:29 PM ERVICE S Affairs, No. 95-7067, 1997 WL 488930, at *3 *3 at 488930, WL 1997 95-7067, No. Affairs, ELETE XPOSURE AND D TAFF TAFF OF 175 E S Pub. L. No. 102-4, 105 Stat. 11 (1991) (codified in in (codified (1991) 11 Stat. 105 102-4, No. L. Pub. OT , N O RANGE RANGE ANANGALA ANANGALA ET AL P O Unfortunately, VDRECSA has not been RESUMPTIVE . 13,154–73 (1984); 130 C RADIOACTIVE VETERANS RADIOACTIVE 176 decision is an important ruling for Atomic Atomic for ruling important an is decision EC GENT :P .MACROS (D .R IRANGA ’A V 14 (2010) (quoting 14 (quoting (2010) The court found ample evidence that the “cause “cause the that evidence ample found court The FFAIRS ONG A 172 Nehmer Brown v. Sec’y of Veterans of Sec’y v. Brown at 1418. 1418. at ABATCHNICK IDATH IDATH ETERANS Id. See .K ., V The The court held that VA had erred in two key carrying ways out in the requirement in P.L. 98-542. utilizing too First, high a standard for by determining if there is a linkage between exposure to subsequent manifestation Agent of a Orange disease and, and second, by a failing to give the benefit of the prescribing doubt the standards to in veterans the regulations in for VA to use in deciding whether to provide service connection disease. specific for any 1989 35 (Comm. Print 1989)). 1989)). Print (Comm. 35 1989 ETERANS ONG OMPENSATION OMPENSATION UBLISHED OF OF Veterans, Congress characterized the the characterized Congress Veterans, enacted to further ease the burden of proof for Vietnam and effect test congressional practice: both the is VA and Congress have used also a ‘statistical inconsistent association’ with standard status for other types to of diseases.” prior grant VA service-connection and V C 172. Nehmer v. U.S. Veterans’ Admin., 712 F. Supp. 1404, 1420 (N.D. Cal. 1989). 1989). Cal. (N.D. 1420 1404, Supp. F. 712 Admin., 1991 Veterans’ of U.S. Act v. Orange Nehmer Agent 172. 173. 174. C 2013] 2013] P 177. Montgomery). of Rep. 177. U.S. Federal U.S. Courts Federal found that Congress intended the legislation with dioxin associated likely for diseases veterans to compensate exposure. 176. 130 C 130 176. n.1 (Cal. Fed. 1997). This was a case brought challenged by the burden of a proof used in group radiation cases. of The atomic argued plaintiffs that veterans that the regulations issued by eligibility for the radiation exposure shall be Department held unlawful, and of the actions, findings, Veterans and conclusions Affairs shall be in set determining aside The 5 case § right.” as (2006). was 706(2) U.S.C. dismissed contrary to constitutional as they were “arbitrary, capricious . case. of the merits addressing the without untimely . . and dioxin-exposed dioxin-exposed veterans cited by the court would also apply to Atomic Veterans. Veterans, Veterans, as many of the congressional statements addressing challenged challenged in the same way by Atomic Veterans. 175. S (2000)). 1116 § U.S.C. 38 at part 175. M K C Y 33718-mqe_14-2 Sheet No. 25 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 25 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 25 Side B 07/02/2013 13:56:24 M K C Y 178 ANCER see also 9 C 9 (diseases (diseases 180 The clear clear The 182 [Vol. 14 14 [Vol. where the claim claim the where 181 note 98, at app. I-89; I-89; app. at 98, note note 98, at 90. 90. at 98, note supra supra , , ) 6/17/2013 5:29 PM ISABILITY ISABILITY D D ELETE D OT N O RESUMPTIVE RESUMPTIVE note 22, slide 13. 13. slide 22, note P P .MACROS (D supra 393, 398—99 (1998) (finding that skin cancer is associated with, with, associated is cancer skin that (finding (1998) 398—99 393, MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE Skin Tumor Risk Among Atomic-Bomb Survivors in Japan, It is clear that Congress intends for the VA to apply apply to VA the for intends Congress that clear is It ONTROL 179 ABATCHNICK VALUATION OF VALUATION OF Id. .K &C The way in which the VA Under Secretary for Benefits The standard by which the VA evaluates scientific and AUSES UBLISHED denies radiogenic denies radiogenic disease claims that a demonstrates heightened standard of proof, that applied to of evaluate cause-and-effect, radiological claims. is applying the six likely factors outlined In in 38 C.F.R. other being Section 3.311, and words, by assessing these factors, the VA is effectually applying a cause- and-effect standard to whether determine a disease radiogenic is related to ionizing radiation exposure. example, by the denial of claims for prostate cancer This is evident, for This is in contrast to the “describes cause-and-effect a much relationship, stronger relationship which between exposure to a particular toxic substance and the development of a particular disease.” the lower, likely association, standard to although the standard has not been challenged and reviewed by radiological claims, courts. the federal implication implication is that the VA places more value in the suspect dose 178. Nehmer v. U.S. Veterans’ Admin., 712 F. Supp. 1404, 1416 (N.D. Cal. 1989). 1989). Cal. (N.D. 1416 1404, Supp. F. 712 Admin., Veterans’ U.S. v. 2012, Nehmer Flohr E 178. 179. 180. 181. C between between exposure to the toxic substance and the adverse health effects is unlikely to be a chance occurrence or happenstance.” 186 Veterans’ claims have Congressional intent since likely the regulations were been denying thousands of Atomic Veterans for promulgated, benefits their service- evaluated contrary diseases. radiological connected to medical evidence for radiological disease controls the success or failure of a veteran’s claim. A statistical or “likely association” has been described as “the observed coincidence in variations P asserts asserts a relatively low radiation dose estimate. that are associated with radiation exposure) Elaine Ron et al., 182. E well). as radiation ionizing by, caused be can and 182. 33718-mqe_14-2 Sheet No. 25 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 25 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 26 Side A 07/02/2013 13:56:24 184 IGHT FOR IGHT F YEAR 187 183 24- S ’ Congress passed the Agent Orange Orange Agent the passed Congress ETERAN ) 6/17/2013 5:29 PM V Nehmer ELETE D 243, 251–56 (2012). OT N TOMIC TOMIC O DVISOR A A Pub. L. No. 102-4, 105 Stat. 11 (1991) (codified in part at at part in (codified (1991) 11 Stat. 105 102-4, No. L. Pub. , S ’ NE ASE RADIOACTIVE VETERANS RADIOACTIVE C :O LDER .MACROS (D .E TUDY ARQ S ABATCHNICK .K , 13 M 13 , ASE OMPENSATION A veteran was awarded service-connected disability ACTS OF THE THE ACTS OF C C UBLISHED The scientific challenges outlined herein are best illustrated by a (BVA). Appeals Veterans of Board the before recentcase 183. In response to the holding in in holding the to response In 183. 2013] 2013] P an increased rating for skin cancer, among other claims. The benefits benefits for diseases attributed to radiation exposure, including avascular necrosis of the femoral head, breathing problems, and estimate estimate and association minimizing between epidemiological radiation exposure Thus, the VA data requires stronger epidemiological evidence than is and these showing diseases. required by VDRECSA to award claims for radiation exposure. Thus, Atomic Veterans’ claims are subject to a higher standard of proof than dioxin-exposed evaluated Vietnam Veterans under VDRECSA. of framework statutory the same A. F VI. Fitzsimmons, as an expert. Given her physics, vast especially in background view in of nuclear the medicine fact Inorganic and that Dr. Chemistry Fitzsimmons from earned her Wake Ph.D. Forest in focused on the synthesis University and characterization of metal complexes for use in nuclear where her doctoral research medicine, she served as an procedural excellent details expert. may not Correspondingly, some be footnoted, all facts found facts and in in the this section citation personal may knowledge above. of be the authors. found in The Unless authors the are otherwise currently above accrued working benefits for cited to the widow of garner case the veteran in this or case. Should the are reader like more information on her case Unsung see Survivors: Craig VA M. Advocacy Kabatchnick Veterans for & the Jonathan Spouses, B. Widows, Kelly, and Children of Elderly 184. Citation No. 0911154 (eDecision Mar. 25, 2009), http://www.va.gov/ http://www.va.gov/ 2009), 25, Mar. (eDecision 0911154 No. Citation (2000)). 1116 § U.S.C. 38 184. vetapp09/files2/0911154.txt (Bd. of Veterans Appeals). Professor Craig Kabatchnick was long-time counsel for the widow and her husband at the before time the Board of of the Veterans hearing Appeals and the subsequent decision granting relief. Professor Kabatchnick qualified one of his students in the North Carolina Central University School of Law Veterans Law Program, specifically Michelle Act of 1991, establishing a new process for the evaluation of dioxin cases that relies upon the NAS to help review the scientific based evidence and on establish presumptions the standard of Agent Orange Act of 1991 "statistical association" instead of "cause and effect." M K C Y 33718-mqe_14-2 Sheet No. 26 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 26 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 26 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. ) 6/17/2013 5:29 PM ELETE D OT Marines, whose mission was aborted N th O .MACROS (D MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE Battalion, 8 Battalion, st ABATCHNICK .K The veteran was a member of the Marine Corps “C” The veteran submitted scientific publications and five Seven Seven years after being exposed to radiation, when the UBLISHED presumptive presumptive disease in REVCA, VDRECSA, or 38 C.F.R. Section 3.311. Company, 1 188 claims, initiated in 1980, were accompanied by a radiation dose reconstruction estimate prepared professional medical opinions. The medical opinions supported by the DTRA, the conclusion that and the diseases were five attributable to exposure. radiation The VA Under claims. Secretary However, for on appeal in 2009, Benefits the BVA ruled denied in favor the of the veteran for avascular necrosis and skin cancer. necrosis Avascular is a radiation exposure-related disease not listed as a P basal cell carcinoma and malignant melanoma, lesions and of his recurrent ears, cheeks, and arms. After leaving the Marine Corps, the progressively veteran deteriorating health effects submitted due radiogenic to evidence diseases, a which variety included of to fifteen surgeries. additional and seven skeletal surgeries the VA of the mission was aborted, the marines remained on-site additional for five an and-a-half hours and site). test the (near Rock Desert then returned to Camp was veteran years 27 skeletal pain, old, he hip and have to began eventually becoming bed ridden at the age of 44. The veteran was eventually diagnosed with bilateral avascular necrosis the femoral head, requiring of bilateral hip replacement. His other skeletal diseases included arthralgia of the cervical and dorsal spine, and bursitis of the left shoulder. began suffering In from 1978, nosebleeds, the nasal veteran and facial dermatitis, due to excessive radiation exposure during Operation Upshot- Knothole, Shot Badger. The was Claimant yards 4,500 from Shot Badger and, after detonation, charge towards ground zero. his The battalion advanced about 500 battalion was ordered yards to before the unexpectedly subjected to excessive winds radiation exposure. After shifted, and the marines were 33718-mqe_14-2 Sheet No. 26 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 26 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 27 Side A 07/02/2013 13:56:24 , , , . ASH W TIOLOGY IAGNOSIS OF OF . ,D –E NIV note 53, at 103, The Incidence of , U TIOLOGY supra , –E 189 Bilateral avascular avascular Bilateral 189 STEONECROSIS STEONECROSIS EGISTRY .J. 267, 267 (1984). (1984). 267 267, .J. R ,O ED N ’ M SS ISEASE ISEASE A STEONECROSIS ) 7/2/2013 8:37 AM RITISH RITISH ,O . 235, 243–44 (1995). (1995). 243–44 235, . &D N (last updated Aug. 4, 2005), CI ’ Additionally, tissue necrosis can can necrosis tissue Additionally, Radiation Changes to Bone S ELETE SS 186 D 288 B A OT Avascular Avascular Necrosis of Bone Caused by Combination N O LAMOS RTHOPAEDIC A UBSTANCES Imaging Imaging in Avascular Necrosis of the Femoral Head 51, 53, 57 (James R. Urbaniak & John Paul Jones, Jr. S “The radiation tolerance of the femoral femoral the of tolerance radiation “The A True Measure of Exposure: The Human Tissue Analysis .O OS 190 ADIOLOGY ADIOLOGY (neither of which the veteran suffered). A M Unfortunately, there is no suitable data data suitable no is there Unfortunately, , http://emedicine.medscape.com/article/386808-overview R RADIOACTIVE VETERANS RADIOACTIVE OXIC RTHOPAEDIC 188 187 23 L 23 T A .MACROS (D .O in REATMENT M , T 43, 44 & John (James R. Urbaniak Paul eds., Jones, Yoshio 1997); Jr. A EFERENCE Idiopathic Osteonecrosis of the Femoral Head: Nationwide Epidemiologic in R , AND AND Thomas Parker Vail & Diane Beal Covington, Covington, Beal Diane & Vail Parker Thomas , The scientific literature showed that avascular necrosis necrosis avascular that showed literature scientific The ABATCHNICK GENCY FOR .K 185 See REATMENT Idiopathic Idiopathic avascular necrosis is extremely rare in healthy T EDSCAPE USCULOSKELETAL IAGNOSIS UBLISHED 188. 188. 122–23. 122–23. Osteonecrosis radiation radiation exposure. necrosis is generally seen with disease processes, including 186. UW MSK Resident Projects, sizable number of avascular necrosis cases are a result of trauma, trauma, result of a are cases necrosis avascular of number sizable including trauma from radiation exposure. (last updated May 25, 2011). 2011). 25, May updated (last 190. Chemotherapy Peter Without Corticosteroids, G. Harper et al., head is substantially lower than the radiation tolerance of long 187. A http://uwmsk.org/residentprojects/radiationchanges.html (stating that necrosis of the femoral head and fractures of the femoral neck have avascular been seen with radiation). of external 16 Gy as as little 187. Hirota Hirota et al., Studies in Japan eds., 1997). eds., 1997). 189. Michael R. Aiello, has been seen in the femoral head with the administration of just has head in of just femoral been with the seen administration the a small amount of radiation. D 185. James F. McInroy, McInroy, F. James 185. Programat Los Alamos, 2013] 2013] P M M develop develop when the radionuclide inhaled is either plutonium or strontium oxide. medical medical opinions linking avascular necrosis exposure.the veteran’s radiation through radiation, inhaled The (bone death) to lungs, likely preferentially distributes lodged in the femoral head in and lung irradiates tissue, over a his period of years, and bones. tissue. eventually destroys the Inhaled plutonium AND AND available available correlating the dose of inhaled radioactive plutonium necrosis. avascular cause to necessary dose oxide strontium and individuals, and most cases are associated with alcoholism hypercortisonism or M K C Y 33718-mqe_14-2 Sheet No. 27 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 27 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 27 Side B 07/02/2013 13:56:24 M K C Y T ’ 195 EP ADIATION ADIATION R 13–14 13–14 (2010) ,U.S.D in Generally Generally , 43, 45 (William (William 45 43, 194 14 [Vol. EGISTRY UIDE R G LUTONIUM P 192 ISEASE ISEASE These studies also also studies These 193 note 185, at 244. RACTICAL RACTICAL &D ROFILE ROFILE FOR P Radiation Pneumonitis and Esophagitis in supra supra :AP ) 7/2/2013 8:37 AM note 186. 186. note ELETE D supra OXICITY UBSTANCES Radiation-Induced Skeletal Injury T S McInroy, McInroy, OT N note 17, at 148, 178, 182, 190, 204.190, 182, 178, 148, at 17, note O 155, 160 (William Small Jr. & Gayle E. Woloschak Woloschak E. Gayle & Jr. Small (William 160 155, OXICOLOGICAL OXIC see also T supra UIDE ., T G ADIATION ADIATION R ERVS S .MACROS (D in DTRA, DTRA, MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE , The veteran did not submit medical opinions 196 at 10, 13–14; 13–14; 10, at GENCY FOR RACTICAL RACTICAL UMAN A The femoral head requires a relatively smaller amount VALUATION ABATCHNICK EVIEW EVIEW OF 191 Seeid. &H :AP See .K Additionally, Additionally, the veteran was requesting a disability rate Regarding Regarding the respiratory problems, the veteran submitted The veteran had diseases that were not listed as VA E EALTH OXICITY UBLISHED increase increase for skin cancer, to service-connected which compensation. he The was requested already increase receiving based was on the progression of disfigurement. the skin diseases and resulting B. with with the diagnosis of a specific radiological disease of the lung passages. and breathing of radiation to result in avascular necrosis. avascular resultin to of radiation 196. R Small Jr. & Gayle E. Woloschakeds., 2006). 196. 193. eds., 2006). 192. Projects, MSK UW Resident 193. Although Although the veteran smoked cigarettes, the damage caused by the radiation exposure to the lungs from Shot Badger could be significantly larger than However, as cited previously by NAS, the the error associated with damage the from internal dose calculations of plutonium refute the internal dose cigarettes. calculations. 194. assertion). veteran’s the supported that publications the (discussing 194. in the lungs and continues to irradiate for years. indicated indicated that inhaled plutonium distributed in the lung tissue, and depending on the particle size and characteristics, remains T H 191. Mark A. Engleman et al., 190 bones.” P speaking, “[t]he lungs are particularly sensitive to irradiation.” to sensitive lungs are particularly speaking, “[t]he scientific scientific publications indicating that both human and studies of animal inhaled plutonium indicate irreparable damage to the respiratory tract and nasal passage. 195. Thoracic Movsas,& Benjamin Jeffrey Bradley Irradiation 33718-mqe_14-2 Sheet No. 27 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 27 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 28 Side A 07/02/2013 13:56:24 OYAL OYAL R These These 198 ROCEEDINGS , U.S. EPA, 52 P 191 A large dose is required required is dose large A 197 ) 7/2/2013 8:37 AM ELETE D OT N O RADIOACTIVE VETERANS RADIOACTIVE .MACROS (D , H. J. G. Bloom, Section of Pathology with Section of Radiology, . 495, 497–98 (1959). (1959). 497–98 . 495, ABATCHNICK Understanding Radiation: Health Effects ED See, e.g. .K As for the avascular necrosis, the VA reasoned that the The veteran’s service records established that the claim was .M Y ’ OC UBLISHED Discussion on the Changes Produced in Tissue by Irradiation, procedures procedures are unlike radioactive plutonium and the radioactive strontium to which inhaled the dose of bone-seeking 197. 197. http://www.epa.gov/radiation/understand/health_effects.html (last updated Aug. 7, 2012). 198. S 2013] 2013] P The internal dose estimate was based on theoretical calculations for inhaled and ingested radioactive particles. low. were relatively estimates dose radiation However, the veteran’s radiation dose estimate was too connected. low to be The service- VA associated based with its avascular arguments necrosis radiotherapy on and resulting the radionuclide from irradiation. radiation fractional These expose the procedures whole body to radiation. discussed below. below. discussed to be evaluated as a radiological claim. The dose reconstruction estimate was initially performed in 1978 by the Defense Nuclear Agency and was revised downward by the DTRA in 2005. The dose estimate included: (1) total external dose, (2) dose estimate for skin exposure to limited the face and ears, and (3) an internal dose estimate. The “total external dose estimate” and the “dose estimate for the skin” used available dosimeter data, reflecting gamma, beta, and neutron radiation emitted from Shot Badger. presumptive diseases under REVCA. assessed under Thus, VDRECSA, and the 38 claim 3.303(d). C.F.R. was Sections 3.311 The and veteran’s claim connection included through the evidence submission of of service- radiation service records dose and reconstruction a estimate. medical evidence submitted to associate the radiological disease The scientific with radiation and exposure included scientific publications. physician The VA statements denied the veteran’s claims, and as to achieve irradiation of the bone and the unintended avascular necrosis because of an uncontrolled environment. M K C Y 33718-mqe_14-2 Sheet No. 28 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 28 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 28 Side B 07/02/2013 13:56:24 M K C Y 1934, 1934, 1935 MAGING 14 [Vol. .I OL Most importantly, importantly, Most .M 200 ED .M UCL ) 7/2/2013 8:37 AM .J.N ELETE EANM Procedure Guideline for Treatment of UR D OT N note 17, at 168, 169, 182. 182. 169, 168, at 17, note O , 35 E 199 supra .MACROS (D DTRA, DTRA, MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE 201 ; Lisa Bodei et al., VALUATION ABATCHNICK EVIEW EVIEW OF .K In this case, the veteran argued the following to the BVA: (1) (1) BVA: to the following the argued veteran the case, In this When When the VA denies a claim, the veteran has the option of By citing the importance of the veteran’s radiation dose . See id. 199 UBLISHED C. BVA E 201. 400% error. to the dose estimate subject The assumptions used to calculate the dose reconstruction estimate render 200. R (2008) (explaining that bone effect). radiotherapy pain can be 200. treated with radiotherapy and this avascular avascular necrosis and the skin consider the inaccuracy of the inhalation diseases. dose estimate, and did The VA did not require the claimant law. of the violations describe that of actions causes legal specific to articulate his/her Common argument issues on under appeal against the unmistakable VA include: error, clear failure and to standard, apply and the failure benefit-of-the-doubt to provide decision(s). a “reason or basis” for the the VA committed clear and unmistakable error in denying the claim, because the correct facts were not before the VA. The VA used the wrong data to evaluate the radiologic effects of appealing appealing the decision to the BVA. If the BVA denies the claim, the claimant can appeal, sequentially, to the Court of for Appeals Veterans Claims (CAVC), United States Court Federal Circuit, of and United Appeals States Supreme Court. The courts 192 exposed.was veteran P the errors in the rendered calculation were so the meaningless. substantial that they veteran’s dose reconstruction estimate estimate, estimate, the VA emphasized estimate in their evaluation. the However, the VA did not evaluate importance of the the weaknesses associated with dose the calculations. NAS and the Committee to Review the Dose Reconstruction Program of the DTRA concluded that there were several incorrect assumptions made in the calculation of internal doses. Refractory Metastatic Bone Pain 33718-mqe_14-2 Sheet No. 28 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 28 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 29 Side A 07/02/2013 13:56:24 193 This case is unique, case is unique, This 203 Unfortunately, service- Unfortunately, 202 ) 7/2/2013 8:37 AM ELETE D OT N O RADIOACTIVE VETERANS RADIOACTIVE .MACROS (D 38 U.S.C. §§ 1155, 5107(b) (2002); 38 C.F.R. §§ 4.1, 4.3, 4.118 (2002) and ABATCHNICK .K Based Based on the evidence presented the BVA awarded service- UBLISHED 203. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.307, 3.303, 3.102, §§ C.F.R. 38 (2002); 5107 1113, 1112, 1110, §§ U.S.C. 38 (all statutes establishing a basis for increased compensation for residuals cell of carcinoma face, the and head, right forearm). under are Ratings the 7800 and of basal 7803 diagnostic code series in the Schedule for Rating Disabilities. 38 C.F.R. § 4.118 (2011). 203. disease). particular a of necessity radiological the (delineating (2011) 3.311 3.309, connected connected compensation for denied, the as the respiratory BVA problems found disease. radiological particular a articulate that was the medical opinion did not 202. These awards were based on the following statutes: statutes: following the on based were awards These 202. 38 U.S.C. §§ 1110, 1112, 5107 statutes (2002); establishing 38 a C.F.R. basis §§ for 3.102, bilateral 3.303, service-connection hips); 3.309 for (2011) avascular (all necrosis of the 2013] 2013] P problems. problems. connection for avascular necrosis of the bilateral hips, as well as increased compensation for residuals of basal cell carcinoma of the face, head, and right forearm. tissue tissue to induction, pathology, by the time-lapse between ionizing exposure and radiation, onset disease and the of extent of to the which exposure to radiation, the or other carcinogens, specific outside of development of service the disease; may (3) the unmistakable VA have error, committed clear as contributed and the VA to Burden of failed Proof to standard, properly under 38 apply failed C.F.R. to apply the the 3.301; benefit of the (4) doubt standard, as the codified in VA 38 U.S.C. Section 5107(b) and 38 C.F.R. Section 3.102; and (5) the VA failed to explain their reasons or basis for the arrival at their decision for avascular necrosis and claimants breathing not evaluate the radiation dose estimate for the passages; (2) lung the VA committed or clear and unmistakable error nasal in denying the claim, as the VA misapplied the law. The VA did not correctly apply 38 C.F.R. factors Section were 3.311, not as the wholly connection. statutory Specifically, considered the limitation in the in inhaled radiation determining dose service estimate methodologies adequately and considered, the relative measurements sensitivity of were the involved not as it is demonstrative of radiation claims that were adjudicated M K C Y 33718-mqe_14-2 Sheet No. 29 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 29 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 29 Side B 07/02/2013 13:56:24 M K C Y . Combee v. 14 [Vol. Combee The Board found found Board The and VDRECSA VDRECSA and 205 204 ) 7/2/2013 8:37 AM ELETE D 206 OT N O .MACROS (D MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE ABATCHNICK .K This case is an important case for the Atomic Veteran Notably, in adjudicating the claims, the BVA found, as a [A]lthough [A]lthough the evidence of record reflects a fairly low dose of radiation, relative to the levels discussed in the studies relied upon by the appellant, the evidence does support a finding that it is scientifically sound to relate the development of avascular necrosis of head/hip the to radiation femoral exposure, as a general principle. numerous Moreover, private doctors have opined, after reviewing the exposure Veteran’s to radiation, medical and that conducting history examinations, in his and particular played case his it a is role likely hip disability. bilateral that in radiation causing the currently diagnosed UBLISHED that: that: 206. Citation No. 0911154 (eDecision Mar. 25, 2009), 2009), 25, Mar. (eDecision 0911154 No. Citation 204. service-connection. Direct 205. 1994). Cir. 1043–44 (Fed. 1039, 34 F.3d Brown, The veteran employed the 206. strategies outlined in Appeals). of Veterans (Bd. http://www.va.gov/vetapp09/files2/0911154.txt 194 under both 38 C.F.R. Section 3.303(d) P regulations. regulations. matter of law, presumptive condition under that 38 C.F.R. Sections 3.309 avascular or 3.311, but necrosis the veteran was was able to show entitlement not to direct basis under 38 C.F.R. Section 3.303(d). benefits on a a listed community community and it challenges associated with non-presumptive, complex radiation demonstrates the claims. As scientific exemplified in this and case, for claim a radiological legal disease to be associates that literature solid scientific and physician statements properly evaluated, the the disease claim with radiation exposure. Since radiation exposure is should include linked with a variety of immediately identify the chronic disease as a diseases, radiological disease. the For VA this reason, may even not with the proper justice. for appeal further requiring often denied, evidence, these claims are 33718-mqe_14-2 Sheet No. 29 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 29 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 30 Side A 07/02/2013 13:56:24 no SED SED U XPOSURE XPOSURE TO E ERBICIDES H 195 note 98, at 64 (quoting ETERANS OF FFECTS OF V E supra , This legislation requires requires legislation This EALTH IETNAM IETNAM 207 V :H ) 7/2/2013 8:37 AM ISABILITY D TANDARD S ELETE RANGE D O FFECTS IN Pub. L. No. 102-4, 105 Stat. 11 (codified(1991) in OT , EW EW E N N O GENT GENT A RESUMPTIVE EALTH EALTH P H RADIOACTIVE VETERANS RADIOACTIVE .MACROS (D IOM was additionally contracted to explore 208 ETERANS AND EVIEW EVIEW THE 6–7 (1994)). (1994)). 6–7 R ,V ABATCHNICK VALUATION OF RGUMENTS FOR A RGUMENTS .K TO TO . A NAS, NAS, through an Institute of Medicine (IOM) committee, IETNAM V ERBICIDES OMM UBLISHED during during the mission; (2) misinformation communicated veteran and to the the public about the health secrecy risks; (3) soldiers the swore, prohibiting them oath from of discussing exposure; their (4) the long “incubation period” with diseases which these are associated; assessing exposure (5) dose; the and (6) experienced difficulty the by variability associated the of veteran, exposure with which analysis complicates of the linking scientific specific disease Congress acknowledged with these challenges for exposure. Vietnam Veterans In and 1991, passed the Agent Orange Act. The VA should evaluate radiologic disease claims similar to the way in which dioxin disease because claims are of currently the evaluated, similarities in These veterans establishing are service-connection. similarly situated, as both face sets the challenges outlined in Sections of III and IV, including: (1) veterans The lack of knowledge and the inability to measure exposure scientific scientific evidence regarding an disease between association and in Vietnam. used to herbicides exposure examines and characterizes the strength of medical evidence relating to the dioxin exposure into scientific the following and four categories: “(1) sufficient evidence of limited/suggestive an association, (2) inadequate/insufficient evidence evidence to association of exists, determine and (4) whether association.” limited/suggestive an an evidence of association, (3) the VA to work with NAS to review and summarize available C 207. Agent Orange Act of 1991 H 2013] 2013] P VII. possible links between service in the Gulf War I and a medical host conditions experienced of by veterans known collectively IN IN 208. E 1116 (2000)). § 38atpart U.S.C. 208. M K C Y 33718-mqe_14-2 Sheet No. 30 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 30 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 30 Side B 07/02/2013 13:56:24 M K , C Y RANIUM U If the VA VA the If SSOCIATED SSOCIATED WITH 209 A EPLETED EPLETED 14 [Vol. :D FFECTS E EALTH H EALTH EALTH H AR AND 4–5 (Carolyn E. Fulco et al. eds., 2000)). 2000)). al. et eds., Fulco E. 4–5 (Carolyn ) 7/2/2013 8:37 AM W ON ON . ULF ULF ELETE D ACCINES ,G OT OMM ,V N AR O W ULF ULF ROMIDE G B .MACROS (D MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE 210 URING THE at 65 (quoting 1 C D ABATCHNICK ONCLUSION Id. Id. .K YRIDOSTIGMINE YRIDOSTIGMINE ,P XPOSURES XPOSURES ARIN UBLISHED disease disease radiation claims, the evaluation process conform to congressional would intent, current statutes, and applicable better regulations. adopted this type of approach to evaluate non-presumptive VIII. C 209. 209. E 196 as “Gulf War Syndrome.” The IOM committees conducted the Gulf War I studies using a similar categorization included: process “(1) that sufficient evidence of a sufficient causal relationship, evidence (2) of an evidence of an association, association, (4) inadequate/insufficient evidence (3) limited/suggestive to determine whether an association does or does not exist, and (5) limited/suggestive evidence of no association.” P S involve involve the evaluation of complex scientific evidence, should the adopt VA a new standard evaluated, under which similar these claims to are the evaluated. way in Implementation of which the same with Veterans Atomic provide and intent congressional this dioxin standard claims would are claims. to dioxin applied proof of standard realize Atomic Atomic Veterans face an unnecessary number of challenges in establishing service-connected radiological diseases. disability The current legislation, claims as implemented by the VA, does not for provide an appropriate mechanism for the their proper adjudication of radiation claims. Because these claims 210. 3.102 (2006). § C.F.R. 38 and Specifically, VDRECSA 33718-mqe_14-2 Sheet No. 30 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 30 Side Sheet 33718-mqe_14-2