BVA9505688 DOCKET NO. 93-11 042 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Entitlement to service connection for lupus erythematosus as a result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Lori J. Wells-Green, Associate Counsel INTRODUCTION The veteran served on active duty from February 1945 to December 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Francisco, California. REMAND The veteran contends that he is entitled to service connection for lupus erythematosus as a result of his exposure to ionizing radiation while participating in the occupation of Japan. In his March 1993 Substantive Appeal, the veteran indicates that after his arrival in Kure, Japan in October 1945, he visited Hiroshima. There are no service personnel documents of record pertinent to this contention. The Board further notes that the only service medical record in the file is the veteran's October 1946 separation examination report. The veteran was initially denied entitlement to service connection for lupus erythematosus on a radiation basis in the appealed September 1991 rating decision. That denial was based upon the fact that lupus erythematosus was not recognized as a potentially radiogenic disease under 38 C.F.R. § 3.311b. However, during the pendency of this appeal, the United States Court of Appeals for the Federal Circuit determined that section 5 of the Veterans' Dioxin and Radiation-Exposure Compensation Standards Act of 1984, Pub. L. No. 98-542, 98 Stat. 2725, 2727- 29, did not preclude, or authorize VA to preclude, a veteran from proving that he has a disability as a result of exposure to ionizing radiation under the provisions of 38 U.S.C.A. § 1110 (West 1991) and 38 C.F.R. § 3.303(d)(1993), despite the fact that the claimed disability is not a potentially radiogenic disease under 38 C.F.R. § 3.311b (now § 3.311). Combee v. Brown, No. 93- 7107, (U.S. Ct. App. Fed. Cir. Sept. 1, 1994), reversing in part Combee v. Principi, 4 Vet.App. 78 (1993). In such cases, a veteran must be given an opportunity to prove that his exposure to ionizing radiation during service actually caused his claimed disability and that service connection is therefore warranted under 38 U.S.C.A. §§ 1110, 1131, and 38 C.F.R. § 3.303(d). In light of the foregoing circumstances, the Board concludes that a remand is in order. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the National Personnel Records Center and all other relevant sources and request copies of the veteran's service personnel and medical records. If no additional records are forth coming the reason(s) should be specifically noted. 2. The RO should contact the veteran, through his representative, and provide him an opportunity to submit additional evidence in support of his claim. 3. With reference to the veteran's claim that he toured Hiroshima in October 1946, if the veteran has submitted evidence of a well grounded claim, the RO should undertake any further development to verify the veteran's allegation. 4. Then, in light of the Federal Circuit's decision in Combee v. Brown, supra, the RO should readjudicate the appellant's claim of entitlement to service connection for lupus erythematosus as a result of radiation exposure. If the benefit sought on appeal is not granted to the veteran's satisfaction, a supplemental statement of the case containing adequate reasons and bases should be issued and the veteran and his representative provided an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. F. JUDGE FLOWERS 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).