BVA9501238 DOCKET NO. 92-53 083 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for hearing loss and tinnitus. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a right knee injury. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for polycythemia vera as secondary to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran was born in April 1939 and had active naval service from April 1956 to March 1960. The service records show that his military occupational specialty was as a radio operator. He served aboard the USS Perkins (DDR 877). This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) at Albuquerque, New Mexico. A hearing was held on November 12, 1991, in Albuquerque, New Mexico, before Richard B. Frank and Edward W. Seery, of the Board section rendering a final determination in this claim and were designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (1991). REMAND In pertinent part, it is contended that new and material evidence has been submitted that warrants reopening of the claim for residuals of polycythemia vera which was incurred as a result of ionizing radiation exposure. Service connection for this disorder was previously denied by the RO on the basis of a radiation exposure in October 1988. Direct service connection was not claimed. The evidence of record in 1988 consisted of service medical records, a fellow serviceman's statement pertaining to the veteran's duties aboard ship during service and post service VA medical records from 1988. Also of record was material from the Encyclopedia Brittanica and an article from a Disabled American Veterans publication pertaining to the effects of radiation. This evidence shows that the veteran was seen at a VA facility in July 1988 after feeling sluggish. He was noted to have a high blood count and the diagnosis was polycythemia of unknown etiology. The RO denied the veteran's claim noting that this disorder was not radiogenic in origin. Evidence added to the record since the 1988 decision consists of additional post service VA medical records and articles pertaining to cancer and leukemia and another issue on appeal. Also added to the record was the transcript of a personal hearing held in November 1991. The medical evidence shows that the diagnosis of polycythemia vera continues. The testimony given was to the effect that the veteran had been told by a VA physician that polycythemia vera was the result of radiation affecting the bone marrow. The medical excerpts supplied by the veteran pertain to cancer treatment and the chromosomes in human cancer and leukemia. 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, Pub. L. No. 98-542, 98 Stat. 2725, 2727-29 (1984), did not preclude, or authorize VA to preclude, a claimant from proving that he or she has a disability as a result of exposure to ionizing radiation in service 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 disability under 38 C.F.R. § 3.311b (now § 3.311) (1993). Combee v. Brown, No. 93-7107, 1994 WL 470364 (Fed. Cir. Sept. 1, 1994), reversing in part Combee v. Principi, 4 Vet.App. 78 (1993). In such cases, a claimant must be given an opportunity to prove that his exposure to ionizing radiation during service actually caused the disability or disabilities for which he or she is claiming service connection, and that service connection is therefore warranted under 38 U.S.C.A. §§ 1110, 1131 (West 1991), and 38 C.F.R. § 3.303(d) (1993). In this case, the denials were predicated, in pertinent part, upon the fact that the conditions for which service connection was sought were not radiogenic. Accordingly, these radiation claims must be readjudicated pursuant to Combee. Furthermore, the veteran should be afforded an opportunity to present evidence and argument on direct service connection. In this connection, however, we note that under Warren v. Brown, 6 Vet.App. 4 (1993), the veteran's recollection of what a physician told him about the causal relationship between radiation exposure and the subsequent development of polycythemia vera is not competent evidence for establishing medical causation. Accordingly, this appeal is hereby remanded to the RO for the following actions: 1. The appellant should be contacted through his representative and afforded the opportunity to submit additional evidence and/or argument in support of his claim. Thereafter, the RO should undertake any indicated development. 2. The RO should then readjudicate the claim for entitlement to service connection for polycythemia vera as secondary to exposure to ionizing radiation in light of Combee v. Brown, No. 93-7107, 1994 WL 470364 (Fed. Cir. Sept. 1, 1994) and Sawyer v. Derwinski, 1 Vet.App. 130 (1991) which provides for de novo review to claims pursuant to regulation promulgated to implement the Veterans' Dioxin and Radiation Exposure Compensation Standards Act. If the benefit sought on appeal is not granted to the satisfaction of the appellant, a supplemental statement of the case should be issued, and the appellant and his representative should be provided with an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he receives further notice from the RO. Appellate consideration of the issues of entitlement to service connection for hearing loss and tinnitus and whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a right knee injury are held in abeyance pending completion of the actions requested in this Remand. RICHARD B. FRANK E. W. SEERY SAMUEL W. WARNER 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).