BVA9503970 DOCKET NO. 93-04 364 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than August 14, 1991, for an award of service connection on a radiation basis for the cause of the veteran's death. REPRESENTATION Appellant represented by: Albert Bates, Attorney ATTORNEY FOR THE BOARD Michael P. Vander Meer, Associate Counsel INTRODUCTION The veteran served on active duty from June 1955 to September 1956, with a subsequent period of active duty for training in 1957. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The appeal was docketed at the Board in March 1993. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the assignment of an effective date earlier than August 14, 1991, is warranted for an award of service connection on a radiation basis for the cause of the veteran's death in that a February 1982 Board denial of service connection for the cause of the veteran's death as well as an April 1984 reconsideration decision by the Board involved clear and unmistakable error. She predicates her assertion of such error, with respect to each of the foregoing Board decisions, on the basis that the Board on each occasion decided the claim based on information furnished by the air force to the effect that the veteran had not participated in any atmospheric nuclear tests as well as a dose estimate of only minimal radiation exposure even if he had participated in such a test, and that it was clear and unmistakable error not to have afforded the appellant the opportunity to challenge the foregoing data. With respect to the latter consideration, she specifically states that the above- mentioned air force report and dose estimate were received subsequent to the appellants's personal hearing, thereby denying the appellant the opportunity to contest the information contained therein. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant's claim of entitlement to an effective date earlier than August 14, 1991, for an award of service connection on a radiation basis for the cause of the veteran's death fails as a matter of law. FINDING OF FACT The appellant's claim of entitlement to an effective date earlier than August 14, 1991, for an award of service connection on a radiation basis for the cause of the veteran's death is predicated solely on an allegation that 1982 and 1984 Board denials of service connection for the cause of the veteran's death involved clear and unmistakable error. CONCLUSION OF LAW The 1982 and 1984 Board decisions denying service connection for the cause of the veteran's death are final and not subject to collateral review for clear and unmistakable error under 38 C.F.R. § 3.105(a), rendering the appellant's claim of entitlement to an earlier effective date for an award of such benefit to be without legal merit. 38 U.S.C.A. § 7104 (West 1991); Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION In denying service connection for the cause of the veteran's death in February 1982, the Board, after observing that any participation the veteran may have had at the atmospheric testing of atomic weapons in 1957 while serving on active duty for training would have exposed him to less than one millirem of radiation per pass over ground zero, determined that there was no relationship between the chronic myelocytic leukemia which occasioned his death in 1978 and his period of service or period of active duty for training. Following receipt of a motion for reconsideration submitted by the appellant's representative on her behalf, the Board, in a reconsideration decision dated in April 1984, concluded that the February 1982 Board denial of service connection for the cause of the veteran's death did not involve obvious error. In considering the appellant's current claim for an effective date earlier than August 14, 1991, for an award of service connection on a radiation basis for the cause of the veteran's death, which benefit was granted in a rating decision entered in November 1991, the Board would point out that the assignment of the August 14, 1991, effective date was, in turn, predicated on the effective date of Public Law 102-86. The foregoing legislation extended presumptive service connection for diseases including the veteran's fatal leukemia to individuals who engaged, as did the veteran during the atmospheric testing of atomic weapons in 1957, in a radiation-risk activity while serving on active duty for training. See 57 Fed. Reg. 10, 425 (1992) (codified at 38 C.F.R. § 3.309(d) (1993). The appellant's sole contention in asserting entitlement to an earlier effective date for an award of service connection on a radiation basis for the cause of the veteran's death is that the 1982 and 1984 Board denials of service connection for the cause of the veteran's death each involved clear and unmistakable error. With respect to such contention, however, the Board must respectfully point out that the United States Court of Appeals for the Federal Circuit has recently held that, with the exception of cases involving matters not relevant to the present case, final decisions of the Board are not subject to collateral review for clear and unmistakable error under 38 C.F.R. § 3.105(a) (1993). Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994). Therefore, the appellant's assertion of clear and unmistakable errror in the 1982 and 1984 Board decisions must fail as a matter of law. Accordingly, inasmuch as such allegation of error comprises the only basis, as pointed out above, for the appellant's claim of entitlement to an earlier effective date for an award of service connection on a radiation basis for the cause of the veteran's death, such claim, the subject of the current appeal, is without legal merit, warranting its dismissal. ORDER Being without legal merit, the claim of entitlement to an effective date earlier than August 14, 1991, for an award of service connection on a radiation basis for the cause of the veteran's death is dismissed. ROBERT E. SULLIVAN 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. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.