BVA9507577 
DOCKET NO.  91-14 007     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee

THE ISSUES

1.  Entitlement to service connection for residuals of a shell
fragment wound of the right foot.

2.  Entitlement to service connection for lipomas on a radiation
exposure basis.

3.  Whether new and material evidence has been received to reopen
the claim for service connection for chronic residuals of frozen
feet.

4.  Whether new and material evidence has been received to reopen
the claim for service connection for chronic residuals of
malaria.

5.  Entitlement to an increased rating for post-traumatic stress
disorder, currently evaluated as 30 percent disabling.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

C. Lawson, Counsel

INTRODUCTION

The appellant, a veteran whose service number was RA [redacted],
served on active duty in the U.S. Army honorably from December
1947 to April 26, 1951.  He also had a period of active service
from April 27, 1951 to December 1953, for which a bad conduct
discharge due to General Court-Martial was received.  His claims
are predicated upon his period of honorable active service.  The
Nashville, Tennessee Department of Veterans Affairs (VA) Regional
Office (RO) denied the benefits sought.  The Board of Veterans'
Appeals (Board) remanded the case to the RO in September 1991 and
March 1994.

REMAND

The appellant's service medical records and service personnel
records for his first period of service have not been obtained,
and it is noted that he had "fire-related service".  The National
Personnel Records Center (NPRC) in November 1994 stated that it
wanted the RO to furnish it with a copy of the appellant's DD
Form 214 from his first period of service, apparently so it could
make further attempts to search for medical records of treatment
the appellant received from the Osaka, Japan Annex 2 treatment
facility, where he was evacuated to from Korea in January 1951.
His unit was A Battery, 13th Field Artillery Battalion, FA Korea,
APO 24 Coordinate 52 SCS 834079.  The RO has not responded to
that request, because apparently there is on file no DD Form 214
for the period of active service ending in April 1951.

Additionally, the appellant had named two physicians who treated
him after service, one, who appears possibly to be Romel John
Amato, M.D., for residuals of malaria in 1961, and the other, who
appears possibly to be Thomas R. Glasco, M.D., for residuals of
frozen feet, in 1973.  A June 1994 letter from the VA RO was
erroneously addressed to a Dr. A. Myroto at 1139 Broad Street,
Newark, New Jersey 07114 and was returned by postal authorities
as undelivered since there was no such address.  It appears that
the correct address was 1119 Broad Street and that the correct
name of the doctor was Amato.

Since the Board's last remand to the RO, there have been changes
in the law or interpretations thereof which require remand for
further development.  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) (1994), despite the fact that the
claimed disability is not listed as a potentially "radiogenic
disease" enumerated at 38 C.F.R. § 3.311 (1994).  Combee v.
Brown, No 93-7107, 1994 WL 470364 (Fed. Cir. September 1, 1994),
reversing in part Combee v. Principi, 4 Vet.App. 78 (1993).  The
Court stated that in such cases, the claimant must be given an
opportunity to prove that he sustained exposure to ionizing
radiation in service, that his exposure to ionizing radiation
during service actually caused his lipomas, and that service
connection is therefore warranted for it pursuant to the
provisions of 38 U.S.C.A. §§ 1110, 1131 (West 1991), and
38 C.F.R. § 3.303(d).  The appellant's claim has not been
considered pursuant to the provisions of 38 C.F.R. § 3.303(d).
Additionally, pursuant to 60 Fed. Reg. 9627 (Feb. 21, 1995) (to
be codified at 38 C.F.R. § 3.311(b)(4)), effective September 1,
1994, if a claim is based on a disease not listed in
38 C.F.R. § 3.311(b)(2) or (3), "VA shall nevertheless
consider the claim under the provisions of this section
(38 C.F.R. § 3.311) provided that the claimant has cited or
submitted competent scientific or medical evidence that
the claimed condition is a radiogenic disease."

The RO has not provided the appellant with an opportunity to
submit competent scientific or medical evidence that his lipomas
are a radiogenic disease, and that he had exposure to ionizing
radiation in service which caused lipomas.

In 1980, the appellant claimed that he suffered from malaria in
1951, and had been treated for it at the Johnson City, Tennessee
VA Medical Center after service.  Some VA medical records from
1979 show that the appellant reported a history of malaria, but
they do not confirm what he alleges doctors told him prior to
1980.  There may be additional records of private and VA
treatment that are not contained in the claims folder.
Additionally, the VA examiner who examined him for malaria for VA
compensation purposes in August 1994 advised him to present for
clinical examination and laboratory sampling during any acute
febrile phase if one occurs.  Records post-dating this advice are
not contained in the claims folder and might help establish his
claim if they were.

The appellant's last VA psychiatric examination was in August
1992.  Subsequently, the appellant was seen for inability to
sleep in January 1994, and was to receive follow-up treatment for
it in May 1994.  Given this, it is advisable to obtain outpatient
treatment records post-dating January 1994 and another VA
psychiatric examination.

Accordingly, the case is REMANDED to the RO for the following
action:

1.  The RO should attempt to obtain and
incorporate into the claims folder copies
of all records of treatment of the
appellant's treatment from Romel John
Amato, M.D., of 1119 Broad Street in
Newark, New Jersey 07114, including in
1961, and from Thomas R. Glasco, M.D., of
448 N. Greensboro Street in Liberty, North
Carolina 27298, including any treatment in
1973.  Additionally, copies of the
appellant's complete in- and outpatient
treatment folders from the Mountain Home,
Johnson City, Tennessee, VA Medical Center
should be obtained and incorporated into
the claims folder, including prior to
April 1979 and after January 1994.  The
appellant should be requested to indicate
precisely where and when he was in
Hiroshima, Japan, and what activities he
was performing there when he allegedly was
exposed to ionizing radiation in active
service.  He should also be requested to
identify any health-care providers that
have advised him that his lipomas were
caused by any such radiation exposure in
service.  He should be provided with and
asked to complete and return a radiation
exposure questionnaire.

2.  Thereafter, in connection with the
appellant's claims, the RO should take
steps to verify or negate the appellant's
in-service radiation exposure, and the
extent thereof.  It should furnish the
NPRC with a copy of the appellant's DD
Form 214 or, if it does not have one,
inquire with the NPRC as to whether some
other record will suffice in its place to
help obtain his service personnel records
(His unit was A Battery, 13th Field
Artillery Battalion, FA Korea, APO 24,
Coordinate 52 SCS 834079).  It should
request the NPRC to use these to search
for records of treatment that the
appellant received from the Osaka, Japan
Annex #2 in January and /or February 1951.
It should obtain his service personnel
records and any DD Form 1141 Record of
Occupational Exposure to Ionizing
Radiation from the NPRC, and request the
Defense Nuclear Agency or the U.S. Army
and Joint Services Environmental Support
Group for information as to whether and to
what extent the appellant was exposed to
ionizing radiation in service, in light of
information he provides in response to the
above and information which is already of
record.  The RO should also attempt to
secure any medical records mentioned by
the appellant that tend to indicate that
radiation exposure may have caused the
appellant's lipomas.  Additionally, the RO
should advise the appellant that it is
ultimately his burden to submit such
evidence, or any other competent
scientific or medical evidence that his
lipomas are a radiogenic disease that was
caused by in-service radiation exposure.

3.  A VA psychiatric examination should be
conducted to determine the extent and
severity of the appellant's
service-connected PTSD.  All pertinent
indicated tests and studies should be
conducted, and the results thereof should
be reported in detail, in accordance with
the VA Physician's Guide for Disability
Evaluation Examinations (IB 11-56 (1985)).
The claims folder should be made
available to the psychiatrist prior to the
examination.

4.  Thereafter, the RO should consider the
appellant's claim for service connection
for lipomas on a radiation exposure basis
in light of the provisions of
38 C.F.R. § 3.303(d) and the regulation
italicized in bold letters, above, which
is to be recodified at
38 C.F.R. § 3.311(b)(4).  It should also
consider the appellant's other claims in
light of the evidence adduced as a result
of this remand.

5.  Thereafter, if any action remains
adverse to the appellant, the case, should
be returned to this Board in accordance
with the usual appellate procedures,
including a supplemental statement of the
case containing all necessary laws,
regulations (including 38 C.F.R.
§ 3.303(d) and the new § 3.311(b)(4)), and
other information required by 38
U.S.C.A. § 7105(d) (West 1991).  If the RO
determines that the appellant's claim for
service connection for lipomas on a
radiation exposure basis is not well
grounded, it should advise him of this and
the reasons therefor.

No action is required of the appellant until he is further
informed.  The purpose of this REMAND is to assist the appellant.
No inference is to be drawn regarding the final disposition of
the claim.

          SAMUEL W. WARNER
          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).