BVA9502107 DOCKET NO. 93-06 655 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for headaches, claimed as fibromyositis, secondary to ionizing radiation exposure. 2. Entitlement to service connection for urinary bladder cancer secondary to ionizing radiation exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant INTRODUCTION The veteran served on active duty from November 1945 to July 1947. This appeal came before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg which denied entitlement to service connection for urinary bladder cancer and headaches, claimed as fibromyositis, on a direct and on a radiation basis. REMAND With respect to the claims on a radiation basis, the veteran asserts that he was exposed to ionizing radiation when he was assigned to guard duty in the laboratory buildings at the Los Alamos laboratories from August 1946 to July 1947. Reportedly, he was serving with Company E Santa Fe Detachment, 9812th Technical Service Unit, Corps of Engineers. He is therefore claiming entitlement on the basis of occupational exposure to ionizing radiation. This is an "Other exposure claim" which must be considered under 59 Fed. Reg. 5107 (1994) (to be redesignated at 38 C.F.R. § 3.311)(hereinafter 38 C.F.R. § 3.311) at (a)(2)(iii). The service records which are associated with the claims file do not verify guard duty at the Los Alamos Laboratories, but simply show that the veteran was stationed at Los Alamos and worked as a Commissary Steward. The Board is unclear as to whether all reasonable attempts have been made to obtain his service personnel records. Evidence associated with the claims file shows that his service personnel records were requested from the National Personnel Records Center, and a reply ultimately received in 1990 states that the request should have been directed to "ARPERCEN". It is unclear whether such a request was made or if there are additional service personnel records at "ARPERCEN". All such records should be obtained by the RO. With specific reference to the headache claim, neither headaches nor fibromyositis is a radiogenic disease under 38 C.F.R. § 3.311. Prior to Combee v. Brown, No. 93-7107, 1994 WL 470364 (Fed. Cir. Sept. 1, 1994), a claimant was precluded from establishing service connection on a radiation basis for conditions which are not radiogenic. Pursuant to Combee, a claimant must now be given the opportunity to prove actual causation on a radiation basis. In this regard, the veteran has repeatedly asserted that he has been told by a number of physicians, including Dr. Weinstein, a VA physician, that his fibromyositis was caused by radiation exposure. The RO should request these opinions. In addition, the record shows various diagnoses for the headaches, including migraine, mixed muscle contraction and vascular headaches and fibromyositis. These diagnoses should be reconciled. With respect to the urinary bladder cancer claim, which involves a radiogenic disease, the Board notes that all records containing information pertaining to the veteran's radiation dose in service have not been forwarded to the VA Chief Medical Director (CMD) for preparation of a dose estimate as is required under 38 § 3.311 (a)(2)(iii), pertaining to all claims other than claims based on atmospheric nuclear test participation or on the occupation of Hiroshima and Nagasaki. In occupational exposure claims, the preparation of a dose estimate by the CMD should precede referral of the claim to the Chief Benefits Director. See 38 C.F.R. § 3.311 (a)(2)(iii), (b)(1)(i),(ii) and (iii). In view of the foregoing, the case is REMANDED for the following action: 1. The RO should ensure that all of the veteran's service personnel records have been obtained from the appropriate records repository and are associated with the claims file. 2. The RO should obtain copies of all of the veteran's treatment records from the VA Medical Center, Birmingham, Alabama, which date from early 1989 to the present time. 3. The RO should ask the veteran to submit statements from the physicians who reportedly told him that fibromyositis was caused by radiation exposure, or, alternatively, ask the veteran to provide the complete names and addresses of these physicians. The RO should then take the necessary steps to obtain these opinions. With specific reference to the Dr. Weinstein at the Neurology Section, VA Medical Center in Birmingham, the RO should take the necessary steps to obtain the claimed opinion from him, if not submitted by the veteran. 4. The RO should request that, pursuant to Combee, if the veteran wishes, he submit any additional proof that the headaches were caused by the claimed exposure to ionizing radiation in service. 5. The RO should schedule the veteran for VA examination by a neurology specialist for the purpose of: (1) reconciling the various diagnoses of the headache disorder (i.e. migraine, mixed muscle contraction and vascular headaches, and fibromyositis); and (2) indicating the probable date of onset. A detailed history should be obtained. The claims file must be made available for review prior to the examination, and this fact should be noted in the examination report. 6. When this development has been completed, all records concerning the veteran's exposure to radiation should be forwarded to the CMD for preparation of a dose estimate, to the extent feasible. 7. If it is determined that the veteran was exposed to ionizing radiation as a result of "activities as claimed," the RO should refer the claims to the Chief Benefits Director for consideration in accordance with 38 C. F. R. § 3.311(c). When this development is completed, the claim should be reviewed by the RO. If the benefits sought are not granted, the veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto. The case should then be returned to the Board, if in order. 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).