BVA9502941 DOCKET NO. 90-50 519 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for defective vision. 2. Whether new and material evidence has been submitted to reopen a claim of service connection for back disability. 3. Whether new and material evidence has been submitted to reopen a claim of service connection for skin disability. 4. Whether new and material evidence has been submitted to reopen a claim of service connection for cardiovascular disability including hypertension and residuals of a stroke. 5. Entitlement to service connection for headaches. 6. Entitlement to service connection for respiratory disability. 7. Entitlement to service connection for psychiatric disability. 8. Entitlement to service connection for loss of teeth. 9. Entitlement to service connection for right elbow disability and left lower extremity disability due to exposure to ionizing radiation. 10. Entitlement to service connection for a blood disorder due to exposure to ionizing radiation. 11. Entitlement to service connection for birth defects of the veteran's children due to the veteran's exposure to ionizing radiation. 12. Entitlement to an increased rating for peptic ulcer disease, status post subtotal gastrectomy, currently evaluated as 40 percent disabling. 13. Entitlement to an effective date earlier than January 11, 1990, for the award of compensation for peptic ulcer disease, status post subtotal gastrectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran had active service from October 1954 to August 1958. This matter came to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In November 1993, the Board remanded the case to the RO for certain development and readjudication of the veteran's claims. The case has now been returned to the Board, and the veteran's representative submitted written argument to the Board in December 1994. REMAND The veteran is seeking service connection for multiple disabilities on a direct and radiation basis. His radiation claims are based on his service aboard USS Walton (DE-361) during Operation REDWING in 1956. The Board notes that in an April 1981 letter, the Navy Nuclear Test Personnel Review reported that there was no record of radiation exposure for the veteran during Operation REDWING. In an enclosed history of the USS Walton during Operation REDWING it was reported that although no dosimetry data existed for the Walton crew, dosimetry data was available for a boat pool located at Eniwetok during Operation REDWING. It was concluded that the boat pool's dosimetry data should be somewhat applicable to the Walton crew since both observed detonations during June 1956. The recorded mean radiation exposure reading for 31 badged boat pool members was 0.617 rem gamma with a range of exposure from 0.19 to 1.19 rem gamma. In a November 1983 letter the Navy Nuclear Test Personnel Review reported that since its April 1981 letter, a final scientific dose calculation of the most probable exposure had been made and included as an enclosure a printout containing dosimetry data for the veteran. That printout shows 0.00 rem gamma as the total calculated exposure for the veteran. In March 1990, the Nuclear Test Personnel Review Program Manager indicated that it was reviewing the veteran's records at his request. The results of this review would be pertinent to the veteran's radiation claims, and should be obtained. The Board notes that with respect to the radiation aspect of the veteran's claims, none of his claimed disabilities is among the diseases for which service connection may be presumed under 38 U.S.C.A. § 1112(c) (West 1991), nor is any among the list of potentially "radiogenic" diseases found in 38 C.F.R. § 3.311b (1993) revised by 59 Fed.Reg. 5,107 (1994) (to be codified at 38 C.F.R. § 3.311). However, the Board notes that while the case was in remand status, 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. 998-542, 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, 1131 (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. § 3.311 [ now § 3.311]. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 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 and 38 C.F.R. § 3.303(d). The veteran's representative has stated that the veteran's July 1993 hearing testimony that he cannot work because of his disabilities is a request for a total rating based on unemployability due to service-connected disabilities. In light of decisions of the United States Court of Veterans Appeal, including EF v. Derwinski, 1 Vet.App. 324 (1991) and Payne v. Derwinski, 1 Vet.App. 85 (1990), the case should be returned to the RO for development and adjudication of this issue. As the Board's adjudication of the veteran's increased rating claim will be delayed by the remand, and the rating for the veteran's service-connected peptic ulcer disease, status post subtotal gastrectomy is important to the total rating claim, the Board will request that current medical evidence pertaining to his service-connected disability be obtained. Accordingly, the issue of entitlement to an effective date earlier than January 11, 1990, for the award of compensation of peptic ulcer disease, status post subtotal gastrectomy is deferred, and the remainder of the case is REMANDED to the RO for the following actions: 1. The RO should contact the Naval Test Personnel Review Program Manager and the Defense Nuclear Agency and request current radiation dose information for the veteran during his service aboard USS Walton (DE- 361) in Operation REDWING in 1956. 2. The RO should contact the veteran and afford him the opportunity to submit additional evidence and/or argument in support of his radiation claims. Thereafter, the RO should undertake any indicated development. 3. The RO should also request that the veteran identify the names, addresses and approximate dates of treatment of all health care providers from whom he has received treatment for his service- connected peptic ulcer disease, status post subtotal gastrectomy between December 1993 and the present. With any necessary authorization from the veteran, the RO should attempt to obtain and associate with the claims file copies of treatment records identified by the veteran. 4. Then, the RO should arrange for a VA examination of the veteran by a board certified gastroenterologist, if available, to determine the nature and extent of the veteran's peptic ulcer disease, status post subtotal gastrectomy. All indicated studies should be performed, and the claims folder should be made available to the physician prior to the examination. 5. The RO should verify the veteran's education, training and complete work history. 6. Thereafter, with consideration of evidence obtained pursuant to the requested development, the RO should readjudicate all the veteran's service connection and new and material evidence claims listed on the title page with consideration of Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994) as it relates to the radiation aspect of the veteran's claims. 7. In addition, with consideration of evidence obtained pursuant to the requested development, the RO should readjudicate the claims of entitlement to an increased rating for peptic ulcer disease, status post subtotal gastrectomy, and then adjudicate entitlement to a total rating based on unemployability due to service connected disabilities. If the total rating claim is denied, the RO should inform the veteran of his appellate rights with respect to that issue. If the benefits sought on appeal are not granted to the veteran's satisfaction, or if a timely Notice of Disagreement is received with respect to any other issue, the RO should issue a Supplemental Statement of the Case for all issues in appellate status, and the veteran and his representative should be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board implies no conclusion, either legal or factual, as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. ROBERT E. SULLIVAN F. JUDGE FLOWERS KENNETH R. ANDREWS 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).