**UNITED STATES COURT OF VETERANS APPEALS**

No. 95-61

[Glenn M. Hardin, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Togo D. West, Jr.,]{.smallcaps}

[Acting Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided February 9, 1998)

*Glenn M. Hardin*, *pro se.*

*Mary Lou Keener,* General Counsel; *Ron Garvin*, Assistant General
Counsel; *R. Randall Campbell*, Deputy Assistant General Counsel; and
*Mary Ann Flynn* were on the brief for the appellee.

Before NEBEKER, *Chief Judge*, and FARLEY and HOLDAWAY, *Judges.*

NEBEKER, *Chief Judge*: The appellant, Glenn M. Hardin, appeals a
September 21, 1994, decision of the Board of Veterans\' Appeals (BVA or
Board) which, inter alia, denied service connection for chronic pain
syndrome, neuropathy, myelopathy, and normochromic anemia, finding that
those conditions were not incurred during the veteran\'s service. Upon
consideration of the record on appeal and the briefs of the parties, the
Court will vacate the Board\'s decision and remand the matters for the
following reasons.

**I. FACTS**

Mr. Hardin served on active duty in the U.S. Air Force from April 1954
to December 1963. Record (R.) at 202, 204. He participated in Operation
DOMINIC I as a fuels specialist stationed on Christmas Island in the
spring of 1962. R. at 202, 441-43. In a July 1962 letter to Mr.
Hardin\'s commanding officer, Major Mervin K. Jacobs offered the
following:

\(1\) During the 1962 nuclear tests, which were held at Christmas
Island, AlC Hardin was assigned to aircraft refueling as a refueling
operator.

\(2\) The mission of the aircraft refueling section was to refuel all
mission, MATS and transient aircraft . . . to ensure mission success.

(30 During the first two months of operations, personnel and equipment
were inadequate to support all refueling requirements in a normal forty
hour week. Consequently, personnel were required to work twelve and
sometimes sixteen hour shifts, seven days a week, on a continuing basis.

R. at 291. Operation DOMINIC I was a series of 36 atmospheric nuclear
weapon detonations held in the Pacific Ocean area from April to November
1962. R. at 698. DOMINIC I is recognized by VA as an \"operational
period\" in which onsite participation entitles veterans to presumptive
service connection for several specified conditions. 38 U.S.C. §
1112(c); *see also* 38 C.F.R. § 3.309 (1996). \"Onsite participation\"
is defined as \"presence at the test site, or performance of official
military duties in connection with ships, aircraft or other equipment
used in direct support of the nuclear test.\" 38 C.F.R. §
3.309(d)(3)(iv)(A).

In March 1978, a VA regional office (RO) denied service connection for
arthritis (multiple joints) and a skin condition secondary to exposure
to atomic radiation. R. at 327. The RO determined that \"exposure to
atomic radiation \[was\] not shown,\" and thus concluded that service
connection for any radiation-related condition was not warranted. *Id*.

In July 1984, Mr. Hardin underwent a VA radiation physical examination.
R. at 570-80. The examining physician, Dr. Kaufmann, did not have access
to the veteran\'s service records and relied, in part, on the veteran\'s
history. R. at 577-78. On objective examination, Dr. Kaufmann noted that
the skin of the veteran\'s face and head appeared slightly reddened and
\"showed signs of a dull redness of a type that is associated with
chronic actinic deteriorations.\" R. at 574. (Actinic refers to rays of
light beyond the violet end of the spectrum that produce chemical
effects, i.e., radiation. [Dorland\'s Illustrated Medical
Dictionary]{.smallcaps} 21 (28th ed. 1994).) The physician further
included the following comments:

This patient gives a rather clear and, on repeated questioning, a
consistent history of exposure to radiation during an atomic tests
\[sic\] series in 1962. If the details of his history are correct, he
apparently suffered some actinic damage immediately following one blast,
and may have experienced some gastrointestinal disturbances following
two blasts. He also gives a history, admittedly anecdotal, of being
radioactive \[upon\] monitoring with a Geiger counter following some f
his exposures. In subsequent years, he has shown some premature aging in
hair and skin with apparent increased sensitivity for actinic damage,
persistent gastrointestinal distress and possible laryngeal and
prostatic nonspecific changes which may or may not be attributed to
radiation.

. . . .

Overall, the patient gives a history which would be consistent with some
acute radiation effects, and possibly some residual effects. Possibility
should \[be\] considered that some of his other processes may have been
influenced by radiation so that his response to other states and the
speed and rapidity of healing may have delayed and that some of the
premature aging effects that he has shown could in fact possibly be
attributed to radiation exposure.

R. at 573. In July 1991, Mr. Hardin was admitted to the hospital with
anemia, blood in his stool, hemocult positive stools, and generalized
pain. R. at 877. On discharge, the final diagnoses included \"(1)
Anemia, normocytic, normochromic cause undetermined, probably due to
previous excess radiation in 1962 . . . (3) Chronic pain syndrome, post
radiation with neurological dysfunction involving the right arm and
right leg.\" R. at 878.

In February 1992, Dr. Richard Furr sent a letter on the veteran\'s
behalf to Mr. Hardin\'s representative. R. at 867-77. Therein, he opined
that radiation exposure on Christmas Island in 1962 significantly
contributed to the veteran\'s ailments. *Id*. Specifically, he stated
the following:

\[Mr. Hardin\'s incomplete quadriplegia\] is probably due to late
delayed myelopathy following exposure to radiation on Christmas Island
in 1962. Chronic normocytic normochromic anemia is also a problem
probably due to radiation exposure. Again no other cause can be found
and this is a generally accepted problem caused by radiation exposure.
Osteoporosis of the axial skeleton is probably due to radiation,
inability to bear weight and lack of exercise.

*Id*. In May 1992, the RO denied entitlement to service connection for
chronic pain syndrome, neuropathy, myelopathy, and normocytic,
normochromic anemia, finding that \"these conditions are not recognized
as radiogenic diseases.\" R. at 917-19. In response, Mr. Hardin
submitted an excerpt from the Cecil Textbook of Medicine. R. at 931. On
the copy submitted was the following notation from Dr. Furr: \"This man
has quadriplegia due to myelopathy due \[to\] radiation. Any layman can
read the simple statements in this book concerning radiation and will
know that.\" *Id*. In July 1992, the RO issued a confirmed rating
decision, which the veteran appealed. R. at 942, 958.

At a June 1993 personal hearing, Mr. Hardin testified that he witnessed
the explosions, on at least one occasion flew into the drop zone, and
serviced the planes involved in nuclear tests on Christmas Island, and
that he did not wear any protective clothing or a film badge. R. at 978.
A Christmas Island Base Clearance document, dated May 22, 1962, reflects
that the veteran cleared several listed departments, but the sign-off
section for \"Radiological Safety (Film Badge)\" is blank. R. at 703.
Mr. Hardin also stated that after some of the tests he was vigorously
sick and that he received radiation burns on the left side of his face.
R. at 979. The nuclear test dosimetry file, maintained by the Reynolds
Electrical and Engineering Co., Inc., reports a Glenn M. *Harding* as
receiving 0.000 roentgens of radiation, and the Air Force later
concluded that, because the service number listed for this individual
matched the veteran\'s, a spelling error had occurred. *See* R. at 354,
357, 444, 447, 695.

In the September 1994 BVA decision here on appeal, the Board denied his
claims for service connection, finding that the presumptive provisions
of 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309(d) did not apply. R. at
8-27. The Board stated that \"\[a\]lthough the veteran qualifies as a
\'radiation-exposed veteran\' because of his participation in Operation
DOMINIC, neither chronic pain syndrome, neuropathy, myelopathy, nor
normocytic, normochromic anemia is one of the specified diseases to
which the presumption applies.\" R. at 21. The Board dismissed the
available physicians\' opinions, relying on this Court\'s opinion in
*Combee v. Principi*, 4 Vet.App. 78 (1993), *en banc review denied sub
nom*. *Combee v. Brown*, 5 Vet.App. 248 (1993), and concluding that the
diagnoses linking radiation exposure to his current conditions were
based solely on the veteran\'s self-reported history. The Board further
stated the following;

As for the opinion of Dr. Furr that the veteran\'s claimed disabilities
are probably due . . . to radiation exposure, the veteran is precluded
from establishing service connection based solely on his exposure to
ionizing radiation. . . . As neither the specific statutory nor
regulatory provisions pertaining to claims based on exposure to ionizing
radiation apply, there exists no adequate evidentiary and legal basis to
attribute the veteran\'s claimed disorders to any exposure to ionizing
radiation in 1962.

R. at 22. The Board also addressed the possibility of service connection
on a nonradiation basis, but determined that, as there was \"no evidence
of record that would bridge the gap between service and initial
diagnosis of these conditions, the evidence, including that pertinent to
service, does not establish that the disorders were present coincident
with service.\" R. at 23.

**II. ANALYSIS**

Service connection for a condition which is claimed to be attributable
to ionizing radiation exposure during service may be established in one
of three different ways. *Ramey v. Brown*, 9 Vet.App. 40, 44 (1996),
*aff\'d sub nom.* *Ramey v. Gober*, 120 F.3d 1239 (Fed. Cir. 1997).
First, there are 15 types of cancer which are presumptively service
connected. 38 U.S.C. § 1112(c). Second, 38 C.F.R. § 3.311(b) (1996)
provides a list of \"radiogenic diseases\" which will be service
connected provided that certain conditions specified in that regulation
are met. Third, direct service connection can be established by
\"show\[ing\] that the disease or malady was incurred during or
aggravated by service,\" a task which \"includes the difficult burden of
tracing causation to a condition or event during service.\" *Combee v.
Brown*, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Qualification under the presumptive provision of 38 U.S.C. § 1112(c)
occurs when a veteran suffers from one of the fifteen listed cancers,
and establishes participation in a \"radiation risk activity\" defined
as:

\(i\) Onsite participation in a test involving the atmospheric
detonation of a nuclear device.

\(ii\) The occupation of Hiroshima or Nagasaki, Japan, by United States
forces during the period beginning on August 6, 1945, and ending on July
1, 1946.

\(iii\) Internment as prisoner of war in Japan (or service on active
duty in Japan immediately following such internment) during World War II
which (as determined by the Secretary) resulted in an opportunity for
xposure to ionizing radiation comparable to that of veterans described
in clause (ii) of this subparagraph.

38 U.S.C. § 1112(c)(4)(B). The disorders from which Mr. Hardin suffers
are not included in the statute. 38 U.S.C. § 1112 (c)(2)(A-M). Thus,
while the veteran is deemed a \"radiation exposed veteran,\" for section
1112 purposes, the presumption of service connection for the unlisted
health conditions is unavailable. *See* *Rucker v. Brown*, 10 Vet.App.
67, 71 (1997). Similarly, chronic pain syndrome, neuropathy, myelopathy,
and normochromic anemia, are not listed among the specifically
enumerated \"radiogenic diseases.\" 38 C.F.R. §
3.311(b)(2)(iv),(xii),(xiii); *see also* *Ramey, supra*.

However, in *Combee*, the United States Court of Appeals for the Federal
Circuit determined that service connection for an unlisted condition can
be pursued under the general VA compensation entitlement system.
*Combee,* 34 F.3d at 1043; *see* 38 U.S.C. § 1110 (basic entitlement to
disability compensation for wartime veterans). In February 1995,
pursuant to the Federal Circuit\'s *Combee* decision, the regulation
governing adjudication of claims based on alleged exposure to ionizing
radiation was changed to include conditions not listed but for which
there is competent medical or scientific evidence. *Compare* 38 C.F.R. §
3.311(b)(2-3) (1994) *with* 38 C.F.R. § 3.311(b)(2-4) (1996). The
relevant portion of the regulation states \"If a claim is based on a
disease other than one of those listed . . . VA shall nevertheless
consider the claim under the provisions of this section provided that
the claimant has cited or submitted competent scientific or medical
evidence that the claimed condition is a radiogenic disease.\" Without
regard to the presumptions found in 38 U.S.C. § 1112 and 38 C.F.R. §
3.309, when a disease is first diagnosed after service, service
connection may therefore be established by evidence demonstrating that
the disease was in fact \"incurred\" during the veteran\'s service or by
evidence that a presumption period applied. *See Combee* 34 F.3d at 1042
(\"\[p\]roof of direct service connection . . . entails proof that
exposure during service caused the malady that appears many years
later\"); *Cosman v. Principi*, 3 Vet.App. 503, 505 (1992) (\"even
though a veteran may not have had a particular condition diagnosed in
service, or for many years afterwards, service connection can still be
established\").

In *Ramey*, this Court addressed the applicability of *Combee* to a
claim for service connection for cancer in connection with ionizing
radiation. *Ramey,* 9 Vet.App. at 45. There, the BVA decision was issued
prior to the Federal Circuit\'s *Combee* opinion and change in the
regulation, and the BVA failed to address the question of direct service
connection. Unlike the circumstances in *Ramey* however, here Mr. Hardin
has submitted competent evidence, including several medical opinions,
that his current conditions are related to radiation exposure.

In his brief, the Secretary argues that the claims are not well
grounded. In *Ramey* and *Rucker*, the Court held that remand to the
Board to address whether direct service connection would apply was
unnecessary, as the appellants in those cases had failed to present
well-grounded claims because they lacked medical evidence of nexus
between the alleged radiation exposure and a current condition. *Ramey*,
9 Vet.App. at 46; *Rucker*, 10 Vet.App. at 71-72. The record here shows
that the Secretary\'s argument is without merit. Mr. Hardin has medical
evidence in the form of physician opinions and treatises to support his
claim for service connection for chronic pain syndrome, neuropathy,
myelopathy, and normochromic anemia as caused by ionizing radiation; his
claims are well grounded. *See Rucker, supra*; *see also Caluza v.
Brown*, 7 Vet.App. 498 (1995). The Court further finds that VA\'s duty
to assist has been triggered. 38 U.S.C. § 5107(a). Finally, while the
provided dose estimate reported that the veteran did not receive any
significant level of radiation, the Board has failed to address Mr.
Hardin\'s statement, supported by the Christmas Island Base Clearance
document, which suggests his radiation level was not monitored.

In *Earle v. Brown*, 6 Vet.App. 558, 562 (1994), the Court expressly
held that \"VA could not rely solely upon the \[Defense Nuclear
Agency\'s\] certification that there was no evidence that the veteran
had participated in a radiation-risk activity.\" Rather, all relevant
evidence of record must be considered and addressed. The dose estimate
of radiation exposure provided to the Air Force is only one piece of
evidence to be considered. Under the statutory criteria of 38 U.S.C.
§1112, Mr. Hardin\'s exposure to ionizing radiation would not be at
issue were he suffering from one of the specifically listed disorders;
he is a \"radiation exposed veteran\" as that term is defined and
understood. 38 U.S.C. § 1112(c)(4)(A); *see also* 38 C.F.R. §3.309.
Further evidence of exposure include his physicians\' statements, which
opine that his current medical conditions are consistent with radiation
exposure. Whether Mr. Hardin\'s diagnosed conditions are related to
radiation is a question which requires medical expertise. Mr. Hardin has
offered medical evidence, including statements of a VA doctor, which
support his claim of service connection. In the present case, as in
*Earle*, a remand is necessary to allow the Board the opportunity to
address the appellant\'s arguments and all the evidence of record,
including the several medical opinions, and to apply the benefit of the
doubt if it finds the evidence to be in equipoise. *Earle*, 6 Vet.App.
at 562.

The Court holds that in the instant case, the Board\--relying
exclusively on the Air Force\'s assessment of Mr. Hardin\'s radiation
exposure\--erred by employing its own unsubstantiated medical opinion to
answer whether the claimed conditions were related to service, and
disregarded Mr. Hardin\'s supporting medical evidence. The Court further
holds that this error was prejudicial. 38 U.S.C. §7261(b). In *Colvin v.
Derwinski*, 1 Vet.App. 171 (1991), we held that the Board may not
substitute its own medical judgment for independent medical evidence.
*See also* *Cosman*, 3 Vet.App. at 506; *Hatlestad v. Derwinski*, 3
Vet.App. 213, 217 (1992) (*Hatlestad II*); *Budnik v. Derwinski*, 3
Vet.App. 185, 187 (1992); *Quarles v. Derwinski*, 3 Vet.App. 129, 139
(1992); *Tobin v. Derwinski*, 2 Vet.App. 34, 39 (1991). While the Board
is not required to accept the medical authority supporting a claim, it
must provide its reasons for rejecting such evidence and, more
important, must provide a medical basis other than its own
unsubstantiated conclusions to support its ultimate decision. *Colvin,*
1 Vet.App. at 175; *see also* *Simon v. Derwinski*, 2 Vet.App. 621, 622
(1992); *Hatlestad v. Derwinski*, 1 Vet.App. 164, 169 (1991) (*Hatlestad
I*); *Gilbert v. Derwinski*, 1 Vet.App. 49, 57 (1990); *Murphy v.
Derwinski*, 1 Vet.App. 78, 81 (1990).

**III. CONCLUSION**

Accordingly, the Board\'s September 21, 1994, decision is VACATED. Mr.
Hardin\'s claims for service connection for chronic pain syndrome,
neuropathy, myelopathy, and normochromic anemia are REMANDED for
adjudication consistent with 38 C.F.R. § 3.311. On remand, the appellant
will be free to submit additional evidence and argument, and the Board
must seek any other evidence it thinks is necessary to the resolution of
the appellant\'s claim. *Quarles*, 3 Vet.App. at 141.