BVA9502556 
DOCKET NO.  93-12 060     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas

THE ISSUE

Entitlement to service connection for cancer of the epiglottis
secondary to exposure to ionizing radiation.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of the
United States

WITNESS AT HEARING ON APPEAL

Appellant

INTRODUCTION

The veteran served on active duty from December 1942 to January
1946.

This appeal arose from a May 1992 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in No.
Little Rock

REMAND

The issue denied by the May 1992 rating decision was
characterized as service  connection for cancer of the larynx.
However, the medical evidence upon which that decision was based
shows that the particular cancer was actually a primary cancer of
the epiglottis.  On an anatomic basis, the larynx includes part,
but not all, of the epiglottis.  Ackerman and del Regato's Cancer
319 (J. del Regato, M.D., and H. Spjut, M.D., eds., 5th ed. 1977)
states that "(t)he oropharanx...includes...the free border of the
epiglottis".

In the veteran's case, the biopsy sections simply show a primary
tumor in the epiglottis which had essentially replaced the
epiglottis and much of the cartilage.  As a result, it cannot be
determined whether the primary tumor began in that portion of the
epiglottis which is considered part of the pharynx.  Therefore,
for purposes of establishing service connection under 38 U.S.C.A.
§ 1112(c), which lists cancer of the pharynx, the Board is of the
opinion that the cancer of the epiglottis should be deemed to be
a cancer of the pharynx.  Accordingly, and in view of the fact
that the veteran claims participation in the occupation of
Hiroshima or Nagasaki during the period from August 1945 to July
1946, this aspect of his claim should be further developed

In addition, the May 1992 rating decision denied the claim, in
pertinent part, because cancer of the epiglottis is not a
radiogenic condition under 59 Fed. Reg. 5107 (1994) (to be
designated at 38 C.F.R. § 3.311).  Since then, the United States
Court of Appeals has held that claimants are no longer foreclosed
from proving actual direct causation on a radiation basis for
non-radiogenic conditions.  Combee v. Principi, 4 Vet. App. 78
(1993), rev'd sub nom. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir.
1994).  The veteran's claim should be readjudicated pursuant to
Combee.

In view of the foregoing, the case is remanded for the following
action:

1.  Because the veteran's cancer of the
epiglottis is deemed a cancer of the
pharynx under the facts of this case, and
he claims he is a radiation exposed
veteran, the RO should undertake
development of the claim under 38 C.F.R.
§ 3.309(c).  That is, the RO should request
information concerning the veteran's
participation in a radiation-risk activity
from the Defense Nuclear Agency.  If
indicated, the RO must also pursue other
sources of evidence with respect to the
veteran's participation in the occupation
of Hiroshima or Nagasaki.  See Earle v.
Brown, 6 Vet. App. 558 (1994).

2.  The RO should inform the veteran that
under 38 C.F.R. § 3.311, he is no longer
foreclosed from proving that cancer of the
epiglottis was caused by the claimed
radiation exposure in service.  He should
be given an opportunity to submit evidence
to prove his claim.

3.  When this development is completed, the
RO should consider the claim under the
applicable criteria and in light of Combee.
If the benefit sought is not granted, the
veteran and his representative should be
provided an appropriate supplemental
statement of the case and be given an
opportunity to respond thereto.

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The case should then be returned to the Board for further
appellate consideration.

          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).