BVA9507687 DOCKET NO. 91-55 757 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for entitlement to direct service connection for impairment of the left upper extremity. 2. Entitlement to service connection for impairment of the left upper extremity secondary to exposure to ionizing radiation and secondary to service connected residuals of spontaneous pneumothorax. 3. Entitlement to an increased evaluation for residuals of a spontaneous pneumothorax, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD William J. Jefferson, III Counsel INTRODUCTION The veteran had active service from September 1945 to December 1948. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Albuquerque, New Mexico, Regional Office (RO). In December 1961 the RO denied the veteran's claim of entitlement to direct service connection for myositis of the left arm and bursitis of the left deltoid. The veteran was notified of the determination in January 1962. A timely notice of disagreement was not filed and the decision became final. In a July 1989 rating decision, the RO essentially determined that new and material evidence had not been submitted to reopen the veteran's claim of service connection for impairment of the left upper extremity. A claim for an increased evaluation for residuals of a spontaneous pneumothorax was also denied. A rating decision dated in August 1990 denied service connection for impairment of the left upper extremity as a result of exposure to ionizing radiation. In July 1991 and June 1993, the case was remanded by the Board to obtain clinical information regarding the service connected residuals of a spontaneous pneumothorax, and the etiology of the veteran's left upper extremity impairment. REMAND The veteran has attempted to reopen a claim of direct service connection for left upper extremity disability. In addition, he has claimed service connection for the left upper extremity disability secondary to exposure to ionizing radiation and secondary to left rib resection; the rib resection is part and parcel of the service connected pneumothorax residuals. The legal criteria pertaining to the radiation claim have changed during the pendency of the appeal pursuant to Combee v. Principi, 4 Vet. App. 78 (1993), rev'd sub nom. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). Combee provides a claimant with an opportunity to prove actual direct causation under 38 U.S.C.A. § 1110 (West 1991) and 38 C.F.R. § 3.303(d) (1994) even though the disability is not radiogenic under 38 C.F.R. § 3.311. The veteran's claim has not been considered in light of the holding in Combee. With respect to the secondary service connection claim, this obviously is not affected by the finality of the 1961 rating decision which only addressed service connection on a direct basis. In addition, the veteran has not been given the legal criteria pertaining to the secondary service claim. It is also not clear whether his claim has been considered under the pertinent regulation, 38 C.F.R. § 3.310(a). In consideration of all of the foregoing, and in order to afford the veteran due process of law. this case is REMANDED to the RO for the following: 1. With respect to the claim of service connection on a radiation basis, the RO must consider that claim under the amendments to 38 C.F.R. § 3.311 effective in September 1994 which were necessary to implement Combee. In this regard, the veteran should be informed that he may now submit medical or scientific evidence that the left upper extremity disability is radiogenic. 2. With respect to the claim of service connection secondary to service connected disability, the RO should consider that claim under 38 C.F.R. § 3.310(a) and without regard to the finality of the 1961 rating decision. 3. If the decisions remain adverse to the veteran, notification of the denial(s) via a supplemental statement of the case should include notification of 38 C.F.R. § 3.310(a) and the amendments to 38 C.F.R. § 3.311 which implemented Combee. After the veteran and his representative have been given an opportunity to respond the supplemental statement of the case, the case should be returned to the Board, if in order. The Board intimates no opinion as to the final outcome of this case. No action is required of the veteran until he receives further notice from the RO. NANCY I. PHILLIPS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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) (1994).