Citation Nr: 0001320	
Decision Date: 01/14/00    Archive Date: 01/27/00

DOCKET NO.  98-202 80	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for the cause of the 
veteran's death. 

2.  Entitlement to Dependents' Educational Assistance 
benefits pursuant to 38 U.S.C.A. Chapter 35.


ATTORNEY FOR THE BOARD

M. J. Bohanan, Counsel


INTRODUCTION

The veteran had active duty from May 1944 to April 1946, and 
from January 1951 to August 1952.

This appeal arises from a September 1998, Department of 
Veterans Affairs (VARO), Montgomery, Alabama rating decision, 
which denied the appellant entitlement to service connection 
for the veteran's cause of death, and denied entitlement to 
Dependents' Educational Assistance Under Chapter 35, Title 
38, United States Code.

FINDINGS OF FACT

1.  The veteran served on active duty from May 1944 to April 
1946, and from January 1951 to August 1952.

2.  The veteran expired in February 1994.  Immediate cause of 
death was cardiorespiratory arrest due to metastatic renal 
cell carcinoma.

3.  Renal cancer is a disease that is subject to presumptive 
service connection pursuant to 38 U.S.C.A. § 11138 C.F.R. 
§ 3.309(d).  

4.  It is alleged that the veteran was a participant in a 
radiation risk activity as defined at 38 C.F.R. 
§ 3.309(d)(3)(ii).


CONCLUSION OF LAW

The claim of entitlement to service connection for the cause 
of the veteran's death is well grounded.  38 U.S.C.A. § 5107 
(West 1991); Ramey v. Brown, 9 Vet. App. 40 (1996); Caluza v. 
Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 
1996) (per curiam) (table).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. 
denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the 
United States Court of Appeals for the Federal Circuit 
(Federal Circuit) held that, under 38 U.S.C. § 5107(a), the 
Department of Veterans Affairs (VA) has a duty to assist only 
those claimants who have established well grounded (i.e., 
plausible) claims.  More recently, the United States Court of 
Appeals for Veterans Claims (Court or CAVC) issued a decision 
holding that VA cannot assist a claimant in developing a 
claim which is not well grounded.  Morton v. West, 12 Vet. 
App. 477 (July 14, 1999), req. for en banc consideration by a 
judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per 
curiam).  

Once a claimant has submitted evidence sufficient to justify 
a belief by a fair and impartial individual that a claim is 
well-grounded, the claimant's initial burden has been met, 
and VA is obligated under 38 U.S.C. § 5107(a) to assist the 
claimant in developing the facts pertinent to the claim.  
Accordingly, the threshold question that must be resolved in 
this appeal is whether the appellant has presented evidence 
that the claim is well grounded; that is, that the claim is 
plausible.

In order for a claim to be well grounded, there must be (1) a 
medical diagnosis of a current disability; (2) medical, or in 
certain circumstances, lay evidence of in-service occurrence 
or aggravation of a disease or injury; and (3) medical 
evidence of a nexus between an in-service injury or disease 
and the current disability.  Epps, 126 F.3d at 1468; Caluza 
v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 
(Fed. Cir. 1996) (per curiam) (table).  Where the 
determinative issue involves medical causation or etiology, 
or a medical diagnosis, competent medical evidence to the 
effect that the claim is "plausible" or "possible" is 
required.  Epps, 126 F.3d at 1468.  Further, in determining 
whether a claim is well-grounded, the supporting evidence is 
presumed to be true and is not subject to weighing.  King v. 
Brown, 5 Vet.App. 19, 21 (1993).  

Service connection for disability that is claimed to be 
attributable to exposure to ionizing radiation during service 
can be demonstrated by three different methods.  Davis v. 
Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. 
App. 67, 71 (1997).  There are certain types of cancer that 
are presumptively service connected specific to radiation-
exposed veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d) 
(1997).  Second, "radiogenic diseases" may be service 
connected pursuant to 38 C.F.R. § 3.311 (1999).  Third, 
service connection may be granted under 38 C.F.R. § 3.303(d) 
when it is established that the disease diagnosed after 
discharge is the result of exposure to ionizing radiation 
during active service.  See Combee v. Brown, 34 F.3d 1039 
(Fed. Cir. 1994).

A "radiation-exposed veteran" is defined by 38 C.F.R. § 
3.309(d)(3) as either a veteran who while serving on active 
duty or on active duty for training or inactive duty 
training, participated in a radiation-risk activity. 
"Radiation-risk activity" is defined to mean onsite 
participation in a test involving the atmospheric detonation 
of a nuclear device; the occupation of Hiroshima, Japan or 
Nagasaki, Japan by United States forces during the period 
beginning on August 6, 1945, and ending on July 1, 1946; or 
internment as a prisoner of war (or service on active duty in 
Japan immediately following such internment) during World War 
II which resulted in an opportunity for exposure to ionizing 
radiation comparable to that of the United States 
occupational forces in Hiroshima or Nagasaki during the 
period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 
3.309(b)(i), (ii).

38 C.F.R. § 3.311 provides instruction on the development of 
claims based on exposure to ionizing radiation, and does not 
refer to any other types of radiation exposure.  Section 
3.311(a) calls for the development of a dose assessment where 
it is established that a radiogenic disease first became 
manifest after service, where it was not manifest to a 
compensable degree within any applicable presumptive period 
specified in either § 3.307 or § 3.309, and where it is 
contended that the disease is a result of ionizing radiation 
in service.  "Radiogenic disease" is defined as a disease 
that may be induced by ionizing radiation, and specifically 
includes urinary bladder cancer. 38 C.F.R. § 3.311(b)(2). 

In the case at hand, the primary cause of the veteran's 
death, according to the death certificate, was metastatic 
renal cell carcinoma.  In a January 1994 Statement in Support 
of Claim, the veteran alleged that he had been exposed to 
radiation during testing at "NTS" in the winter of 1951.  
In the accompanying claim form, he indicated that he had been 
a participant in Operation Desert Rock, Nevada, in the winter 
of 1951.  The appellant has contended, in his January 1998 
Statement in Support of Claim, that the veteran was exposed 
to ionizing radiation during nuclear testing in "Arizona."  
He later maintained that the veteran's exposure took place 
during testing in "Albuquerque, New Mexico" while the 
veteran was in service.  The Board notes that the veteran's 
service personnel records, with the exception of his DD 214 
and WD AGO Form 53-55 were destroyed by fire.  Apart from 
requesting the veteran's service records, the RO has made no 
attempt to verify the veteran's participation in atmospheric 
nuclear testing.

The veteran died from renal cancer, a disease that is subject 
to presumptive service connection pursuant to 38 U.S.C.A. 
§ 1112(c); 38 C.F.R. § 3.309(d).  (It is also a radiogenic 
disease as defined pursuant to 38 C.F.R. § 3.311).  His 
allegations as to participation in atmospheric nuclear 
testing are presumed credible for the limited purpose of 
determining whether the claim is well grounded.  It is.  
Further development of the merits of claim is required by the 
applicable regulation.


ORDER

The claim of entitlement to service connection for the cause 
of the veteran's death is well grounded.  To this extent 
only, the appeal is granted.


REMAND

Because the claim of entitlement to service connection for 
the cause of the veteran's death is well grounded, VA has a 
duty to assist the appellant in developing facts pertinent to 
the claim.  38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. 
§ 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990).  
The Board notes that the issue of entitlement to Dependents' 
Educational Assistance benefits pursuant to 38 U.S.C.A. 
Chapter 35 is inextricably intertwined with the issue of 
entitlement to service connection for the cause of the 
veteran's death.  Harris v. Derwinski, 1 Vet. App. 180, 183 
(1991) (the claims are so linked as to require simultaneous 
adjudication).

Confirmation of the veteran's participation in atmospheric 
nuclear testing should be requested from official sources.  
Accordingly, the case is REMANDED for the following 
development:

1.  The RO should contact the service 
department to document the veteran's 
involvement in any radiation risk 
activity during service, and, in 
particular, his participation in 
atmospheric nuclear testing, as has been 
alleged by and on his behalf. 

2.  Thereafter, the RO should review the 
claims file to ensure that all of the 
foregoing requested development has been 
completed.  If not, the RO should 
implement corrective procedures.

3. The RO should then readjudicate the 
issues of entitlement to service 
connection for the cause of the veteran's 
death and entitlement to Dependents' 
Educational Assistance under Chapter 35 
of the United States Code.  All pertinent 
law, regulations, and Court decisions 
should be considered.  If the appellant's 
claim remains in a denied status, he 
should be provided a supplemental 
statement of the case, which includes any 
additional pertinent law and regulations, 
including those referable to Chapter 35 
benefits, and a full discussion of action 
taken on the claim, consistent with the 
Court's instruction in Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990). The 
applicable response time should be 
allowed.

The purpose of the REMAND is to satisfy due process 
requirements.  The Board intimates no opinion as to the 
ultimate outcome of this case.  The appellant need take no 
action unless otherwise notified.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded to 
the regional office.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans' Appeals or by the United States Court of 
Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner.  See The Veterans' Benefits Improvements Act of 1994, 
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and 
Statutory Notes).  In addition, VBA's Adjudication Procedure 
Manual, M21-1, Part IV, directs the ROs to provide 
expeditious handling of all cases that have been remanded by 
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.

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	NANCY I. PHILLIPS
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a 
decision of the Board of Veterans' Appeals is appealable to 
the United States Court of Appeals for Veterans Claims.  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) (1999).