BVA9500066 DOCKET NO. 93-01 216 ) DATE ) ) On appeal from a decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for lymphoma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Sheila A. Lawson, Associate Counsel REMAND The veteran had active service from October 1950 to October 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1987 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The veteran contends that he is entitled to service connection for lymphoma (Hodgkin's disease). In support of this contention, the veteran points out that he participated in Shot DOG, Operation TUMBLER-SNAPPER and argues that his having been exposed to radiation during this operation caused the Hodgkin's disease that was diagnosed in 1987. The veteran and his representative also contend that no credence should be given to radiation dose estimates prepared by the Defense Nuclear Agency (DNA), in light of the calculation of these estimates on the basis of probabilities. The veteran's service medical records are negative for any complaint, treatment or diagnosis of Hodgkin's disease; he was not diagnosed as having Hodgkin's disease until April 1987, more than 30 years after his separation from service. In October 1988, the DNA confirmed that veteran's presence at the Nevada Test Site in conjunction with Shot DOG, Operation TUMBLER- SNAPPER, in April 1952. The DNA also reported that while a thorough search of radiation dosimetry data failed to produce a record of the veteran's 1952 radiation exposure, a scientific dose reconstruction titled Analysis of Radiation Exposure for Observers and Maneuver Troops, Exercise Desert Rock VI, Operation TUMBLER-SNAPPER, indicated that the veteran would have received a probable dose of 0.37 rem gamma for his activities at TUMBLER- SNAPPER. The DNA indicated that this dose was at the upper error bound of 0.63 rem gamma and a lower error bound of 0.22 rem gamma. The DNA further reported that a dose reconstruction titled Neutron Exposure for DoD Nuclear Test Personnel indicated that because of the distance of the veteran's unit from ground zero, he had virtually no potential for exposure to neutron radiation. In April 1990, the Board determined that service connection was not warranted for Hodgkin's disease on the grounds that this disease was not diagnosed until April 1987, and thus did not manifest during service or to a compensable degree within one year thereafter, as required by 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (1993). The Board also pointed out that Hodgkin's disease was not included in the list of radiogenic diseases set forth in 38 C.F.R. § 3.311b (1993). During the pendency of this appeal, the United States Court of Appeals for the Federal Circuit (Court) determined that section 5 of the Veterans' Dioxin and Radiation-Exposure Compensation Standards Act of 1984, Pub. L. No. 98-542, 98 Stat. 2725, 2727- 29, did not preclude, or authorize VA to preclude, a veteran from proving that he has a disability as a result of exposure to ionizing radiation under the provisions of 38 U.S.C.A. § 1110 (West 1991) and 38 C.F.R. § 3.303(d) (1993), despite the fact that the claimed disability is not a potentially radiogenic disease under 38 C.F.R. § 3.311b (now § 3.311). Combee v. Brown, No. 93-7107, (U.S. Ct. App. Fed. Cir. Sept. 1, 1994), reversing in part Combee v. Principi, 4 Vet.App. 78 (1993). In such cases, a veteran must be given an opportunity to prove that his exposure to ionizing radiation during service actually caused his claimed disability and that service connection is therefore warranted under 38 U.S.C.A. §§ 1110, 1131, and 38 C.F.R. § 3.303(d). In light of the foregoing circumstances, the Board finds that a remand is warranted. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should request the VA Chief Medical Director to review the veteran's claims folder, to include any information provided by the DNA, and prepare a dose estimate of the veteran's service radiation exposure in accordance with the requirements of 38 C.F.R. § 3.311(a)(2)(iii). The RO should then undertake any other indicated development. 2. Thereafter, in light of all the evidence obtained pursuant to the requested development, the RO should readjudicate the veteran's claim of entitlement to service connection for Hodgkin's disease in accordance with the Court's decision in Combee, supra, and with reference to the proposed rule to include Hodgkin's disease and rectal cancer in the list of radiogenic diseases under 38 C.F.R. § 3.311b. See Claims Based on Exposure to Ionizing Radiation (Lymphomas Other Than Hodgkin's Disease and Cancer of the Rectum), 59 Fed.Reg. 60,576 (1994) (proposed rule). If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a Supplemental Statement of the Case, 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. In taking this action, the Board implies no conclusion, either legal or factual, as to any ultimate outcome warranted. No action is required of the veteran until he is notified by the RO. 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. 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).