BVA9500792 
DOCKET NO.  93-08 720     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama

THE ISSUE

Entitlement to service connection for the cause of the veteran's
death, to include resulting from exposure to Agent Orange.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

C. Chaplin, Associate Counsel

REMAND

The veteran had active duty from May 1969 until December 1971.

This appeal originally ensued from a rating action of October
1992 which denied service connection for the cause of the
veteran's death and deferred the claim for entitlement to service
connection for the cause of the veteran's death as the result of
Agent Orange exposure.

In Nehmer v. United States Veterans Administration, 712 F. Supp.
1404 (N.D. Cal., May 2, 1989), a United States District Court
voided all benefit denials under 38 C.F.R. § 3.311a, the "dioxin"
(Agent Orange) regulation, which was promulgated under the
"Dioxin and Radiation Exposure Compensation Standards Act,"
38 U.S.C.A. § 1154(a) (West 1991), and remanded the case to the
Department of Veterans Affairs for revision of the regulation in
accordance with the ruling of the Court.  Adjudication of the
appellant's claim regarding exposure to Agent Orange has been
deferred by the RO pending promulgation of the new regulations.

The regulations have now been revised, and diseases associated
with exposure to certain herbicide agents are now enumerated in
38 C.F.R. § 3.309(e), the most recent version of which is
published at 59 Fed. Reg. 5107 (1994).  Additional proposed
amendments have been published at 59 Fed. Reg. 5161 (1994).
Further, the Secretary of Veterans Affairs formally announced in
the Federal Register, on January 4, 1994, that a presumption of
service connection based on exposure to herbicides used in
Vietnam was not warranted for specified conditions, or for "any
other condition for which the Secretary has not specifically
determined a presumption of service connection is warranted."  59
Fed. Reg. 341 (1994).  Supplemental information consisting of a
discussion of the scientific and medical evidence relied upon in
support of the final regulations follows the formal declaration.
59 Fed. Reg. 341-346 (1994).  Therefore, claims for service
connection for disabilities based on exposure to Agent Orange may
now be adjudicated.  See VBA Circular 21-94-1 (Feb. 15, 1994).
In order to ensure due process of the veteran's claim, the RO
must have an opportunity to review the appellant's claim for
service connection for the cause of the veteran's death claimed
as a result of Agent Orange exposure.

Notwithstanding the foregoing, the United States Court of Appeals
for the Federal Circuit recently determined that the Veterans'
Dioxin and Radiation Exposure Compensation Standards (Radiation
Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-
29 (1984) does not preclude a veteran from establishing service
connection with proof of actual direct causation.  Combee v.
Brown, 34 F.3d 1039 (Fed. Cir. 1994).  However, the United States
Court of Veterans Appeals (Court) has held that where the issue
involves medical causation, competent medical evidence which
indicates that the claim is plausible or possible is required to
set forth a well-grounded claim.  Grottveit v. Brown, 5 Vet.App.
91, 93 (1993).

To ensure full compliance with due process requirements, the case
is REMANDED to the regional office (RO) for the following
development:

The RO should adjudicate the appellant's
claim for service connection for the cause
of the veteran's death claimed as a result
of exposure to Agent Orange, pursuant to VBA
Circular 21-94-1 (Feb. 15, 1994), and with
attention to the most recent version of
38 C.F.R. § 3.309(e), published at 59 Fed.
Reg. 5107 (1994), as well as proposed
amendments published at 59 Fed. Reg. 5161
(1994).

After completion of the requested development, the case should be
reviewed by the originating agency.  If the decision remains
adverse to the appellant, she and her representative should be
furnished a supplemental statement of the case and afforded an
opportunity to appeal the decision adjudicated.  Thereafter, the
case should be returned to the Board for appellate consideration,
if indicated.

          BETTINA S. CALLAWAY
          Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal.  38 C.F.R. § 20.1100(b) (1993).