BVA9507408 DOCKET NO. 92-00 060 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Entitlement to service connection for postoperative residuals of squamous cell carcinoma of the larynx on a radiation exposure basis. 2. Whether new and material evidence has been received to reopen the claim for secondary service connection for squamous cell carcinoma of the larynx . 3. Whether new and material evidence has been received to reopen the claim for direct service connection for squamous cell carcinoma of the larynx. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant, a veteran, was born in November 1926 and served on active duty in the U.S. Army from October 1953 to October 1955. He had surgery (total laryngectomy with right radical resection) and treatment in 1972 for a well-differentiated epidermoid or squamous cell carcinoma of the supraglottic space. Service connection was granted for buccal leukoplakia, rated as noncompensable from 1972. Service connection was denied for the disability at issue in May 1972, and the denial was continued in July 1986. Neither denial action was timely appealed within one year from the date of notice. The appellant applied to reopen the claim in May 1989. The Nashville, Tennessee Regional Office (RO) continued the denial in March 1991. In July 1991, he claimed service connection for cancer of the larynx on a radiation basis. The Board of Veterans' Appeals (Board) remanded the service connection issues to the RO in June 1993. REMAND One of the appellant's contentions is that service connection is warranted for postoperative residuals of squamous cell carcinoma of the larynx, because it was caused by radiation exposure he claims he sustained in 1955 during active service. He testified that radioactive materials were stored at Camp Hanford, Washington, and described activities he performed in proximity to them. He stated that he was told by a doctor at the U.S. Army Hospital at Camp Hanford that a blast of radiation was responsible for his hair falling out in clumps, rashes on his hands and face, watery blisters on his hands, a growth on his eye, and his mouth turning white. Since the Board's 1993 remand, 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 squamous cell carcinoma of the larynx, 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 carcinoma of the larynx is a radiogenic disease, and that he had exposure to ionizing radiation in service which caused it. Accordingly, the case is REMANDED to the RO for the following action: 1. The appellant should be requested to indicate precisely where and when and what activities he was performing at Camp Hanford when he may have been exposed to ionizing radiation in service, and who the physician was that told him that his symptoms in service or that his squamous cell carcinoma of the larynx might have been caused by it. He should be provided with and asked to complete and return a radiation exposure questionnaire. 2. Thereafter, the RO should take steps to verify or negate the appellant's in- service radiation exposure, and the extent thereof, including by obtaining his service personnel records and any DD Form 1141 Record of Occupational Exposure to Ionizing Radiation, and through the Defense Nuclear Agency, or the U.S. Army and Joint Services Environmental Support Group, 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 that tend to indicate that radiation exposure may have caused the appellant's squamous cell carcinoma of the larynx. This should include any medical records from any physicians he mentions and copies of 1956 hospital treatment records at Thayer Hospital in Nashville, Tennessee. 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 carcinoma of the larynx is a radiogenic disease that was caused by in- service radiation exposure. 3. Thereafter, the RO should consider the evidence of record in relationship to the provisions of 38 C.F.R. § 3.303(d) and the regulation italicized and in bold letters, above, which is to be recodified at 38 C.F.R. § 3.311(b)(4). 4. Thereafter, if any action remains adverse to the appellant, the case, including the appellant's three treatment record folders, 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, 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 squamous cell carcinoma of the larynx 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).