BVA9506039 
DOCKET NO.  93-09 386     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in San Diego,
California

THE ISSUE

Entitlement to service connection for chronic obstructive
pulmonary disease with asthma.

REPRESENTATION

Appellant represented by: Military Order of the Purple
Heart

ATTORNEY FOR THE BOARD

R. K. ErkenBrack, Counsel

INTRODUCTION

The veteran had active duty from June 1954 to July 1956.

This appeal arises from a rating decision in May 1992 of the
Department of Veterans Affairs (VA) Regional Office (RO) at San
Diego, California.

REMAND

The veteran makes a number of claims with respect to the cause of
chronic obstructive pulmonary disease.  Among them, he claims
that he was in Japan following the atomic bombings and, as a
result of exposure to ionizing radiation in connection therewith,
developed the lung disease at issue.  The radiation claim was
denied by the RO, in pertinent part, because chronic obstructive
pulmonary disease is not a recognized radiogenic disease under 38
C.F.R. § 3.311.

Since the March 1993 Statement of the Case, the criteria and the
regulations for determining service connection on a claim based
on exposure to ionizing radiation has changed.  In Combee v.
Principi, 4 Vet.App. 78 (1993), rev’d sub nom.
Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), it was held that
claims of direct service connection for a disability as due to
inservice exposure to ionizing radiation, irrespective of whether
the disorder was "radiogenic" under 38 C.F.R. § 3.311 (1994) or
"radiopresumptive" under 38 U.S.C.A. § 1112(c) (West 1991) and 38
C.F.R. § 3.309(d) (1994), were valid and had to be adjudicated
under 38 U.S.C.A. §§ 1110 and 1131 (West 1991) and 38 C.F.R.
§ 3.303(d) (1994).  Also, the applicable regulation governing
claims based on exposure to ionizing radiation has been recently
changed for the situation where the claimant has cited or
submitted competent scientific or medical evidence that the
claimed condition is a radiogenic disease (60 Fed. Reg. 9628
(1995), to be codified at 38 C.F.R. § 3.311(b)(4) (1995)).  The
adjudication and Statement of the Case for this appeal have not
taken account of these changed criteria applicable to the claim.

In addition, the veteran has not been informed of the provisions
of 38 U.S.C.A. § 5107(a)(West 1991) which state that persons who
claim VA benefits have the burden of submitting evidence
sufficient to justify a belief by a fair and impartial individual
that their claims are well grounded.

In view of the foregoing, the case is REMANDED to the RO for the
following development:

1.  The RO should inform the veteran that,
pursuant to Combee, he may now submit
evidence that the chronic obstructive
pulmonary disease was caused by the alleged
exposure to ionizing radiation in service.

2.  The RO should then review the record
and adjudicate the claim based on radiation
exposure under the applicable criteria.  If
it is determined thereunder that the
veteran's lung disease may be considered
"radiogenic" by application of the new
criteria under 60 Fed. Reg. 9628 (1995), to
be codified at 38 C.F.R. § 3.311(b)(4)
(1995), then the development required by 38
C.F.R. § 3.311(a)(2)(iii) (1994) should be
undertaken.

3.  The RO should adjudicate the claims for
service connections for chronic obstructive
pulmonary disease which are not based on
radiation exposure under all pertinent
criteria, including those set forth
previously in this remand.

4.  If any benefit sought on appeal, for
which a notice of disagreement has been
filed, remains denied, the veteran and his
representative should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.

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Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate outcome
of this case.  The veteran need take no action unless otherwise
notified.

          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) (1993).