[Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 38 CFR 3.311][Page 242-245]
TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
PART 3--ADJUDICATION--Table of Contents
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
Sec. 3.311 Claims based on exposure to ionizing radiation.
(a) Determinations of exposure and dose--(1) Dose assessment. In all
claims in which it is established that a radiogenic disease first became
manifest after service and was not manifest to a compensable degree
within any applicable presumptive period as specified in Sec. 3.307 or
Sec. 3.309, and it is contended the disease is a result of exposure to
ionizing radiation in service, an assessment will be made as to the size
and nature of the radiation dose or doses. When dose estimates provided
pursuant to paragraph (a)(2) of this section are reported as a range of
doses to which a veteran may have been exposed, exposure at the highest
level of the dose range reported will be presumed.
(Authority: 38 U.S.C. 501)
(2) Request for dose information. Where necessary pursuant to
paragraph (a)(1) of this section, dose information will be requested as
follows:
(i) Atmospheric nuclear weapons test participation claims. In claims
based upon participation in atmospheric nuclear testing, dose data will
in all cases be requested from the appropriate office of the Department
of Defense.
(ii) Hiroshima and Nagasaki occupation claims. In all claims based
on participation in the American occupation of Hiroshima or Nagasaki,
Japan, prior to July 1, 1946, dose data will be requested from the
Department of Defense.
(iii) Other exposure claims. In all other claims involving radiation
exposure, a request will be made for any available records concerning
the veteran's exposure to radiation. These records normally include but
may not be limited to the veteran's Record of Occupational Exposure to
Ionizing Radiation (DD Form 1141), if maintained, service medical
records, and other records which may contain information pertaining to
the veteran's radiation dose in service. All such records will be
forwarded to the Under Secretary for Health, who will be responsible for
preparation of a dose estimate, to the extent feasible, based on
available methodologies.
(3) Referral to independent expert. When necessary to reconcile a
material difference between an estimate of dose, from a credible source,
submitted by or on behalf of a claimant, and dose data derived from
official military records, the estimates and supporting documentation
shall be referred to an independent expert, selected by the Director of
the National Institutes of Health, who shall prepare a separate
radiation dose estimate for consideration in adjudication of the claim.
For purposes of this paragraph:
(i) The difference between the claimant's estimate and dose data
derived from official military records shall ordinarily be considered
material if one estimate is at least double the other estimate.
[[Page 243]]
(ii) A dose estimate shall be considered from a ``credible source''
if prepared by a person or persons certified by an appropriate
professional body in the field of health physics, nuclear medicine or
radiology and if based on analysis of the facts and circumstances of the
particular claim.
(4) Exposure. In cases described in paragraph (a)(2)(i) and (ii) of
this section:
(i) If military records do not establish presence at or absence from
a site at which exposure to radiation is claimed to have occurred, the
veteran's presence at the site will be conceded.
(ii) Neither the veteran nor the veteran's survivors may be required
to produce evidence substantiating exposure if the information in the
veteran's service records or other records maintained by the Department
of Defense is consistent with the claim that the veteran was present
where and when the claimed exposure occurred.
(b) Initial review of claims. (1) When it is determined:
(i) A veteran was exposed to ionizing radiation as a result of
participation in the atmospheric testing of nuclear weapons, the
occupation of Hiroshima or Nagasaki, Japan, from September 1945 until
July 1946, or other activities as claimed;
(ii) The veteran subsequently developed a radiogenic disease; and
(iii) Such disease first became manifest within the period specified
in paragraph (b)(5) of this section; before its adjudication the claim
will be referred to the Under Secretary for Benefits for further
consideration in accordance with paragraph (c) of this section. If any
of the foregoing 3 requirements has not been met, it shall not be
determined that a disease has resulted from exposure to ionizing
radiation under such circumstances.
(2) For purposes of this section the term ``radiogenic disease''
means a disease that may be induced by ionizing radiation and shall
include the following:
(i) All forms of leukemia except chronic lymphatic (lymphocytic)
leukemia;
(ii) Thyroid cancer;
(iii) Breast cancer;
(iv) Lung cancer;
(v) Bone cancer;
(vi) Liver cancer;
(vii) Skin cancer;
(viii) Esophageal cancer;
(ix) Stomach cancer;
(x) Colon cancer;
(xi) Pancreatic cancer;
(xii) Kidney cancer;
(xiii) Urinary bladder cancer;
(xiv) Salivary gland cancer;
(xv) Multiple myeloma;
(xvi) Posterior subcapsular cataracts;
(xvii) Non-malignant thyroid nodular disease;
(xviii) Ovarian cancer;
(xix) Parathyroid adenoma;
(xx) Tumors of the brain and central nervous system;
(xxi) Cancer of the rectum;
(xxii) Lymphomas other than Hodgkin's disease;
(xxiii) Prostate cancer; and
(xxiv) Any other cancer.
(Authority: 38 U.S.C. 501)
(3) Public Law 98-542 requires VA to determine whether sound medical
and scientific evidence supports establishing a rule identifying
polycythemia vera as a radiogenic disease. VA has determined that sound
medical and scientific evidence does not support including polycythemia
vera on the list of known radiogenic diseases in this regulation. Even
so, VA will consider a claim based on the assertion that polycythemia
vera is a radiogenic disease under the provisions of paragraph (b)(4) of
this section. (Authority: Pub. L. 98-542, section 5(b)(2)(A)(i), (iii)).
(4) If a claim is based on a disease other than one of those listed
in paragraph (b)(2) of this section, 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.
(5) For the purposes of paragraph (b)(1) of this section:
(i) Bone cancer must become manifest within 30 years after exposure;
(ii) Leukemia may become manifest at any time after exposure;
(iii) Posterior subcapsular cataracts must become manifest 6 months
or more after exposure; and
[[Page 244]]
(iv) Other diseases specified in paragraph (b)(2) of this section
must become manifest 5 years or more after exposure.
(Authority: 38 U.S.C. 501; Pub. L. 98-542)
(c) Review by Under Secretary for Benefits. (1) When a claim is
forwarded for review pursuant to paragraph (b)(1) of this section, the
Under Secretary for Benefits shall consider the claim with reference to
the factors specified in paragraph (e) of this section and may request
an advisory medical opinion from the Under Secretary for Health.
(i) If after such consideration the Under Secretary for Benefits is
convinced sound scientific and medical evidence supports the conclusion
it is at least as likely as not the veteran's disease resulted from
exposure to radiation in service, the Under Secretary for Benefits shall
so inform the regional office of jurisdiction in writing. The Under
Secretary for Benefits shall set forth the rationale for this
conclusion, including an evaluation of the claim under the applicable
factors specified in paragraph (e) of this section.
(ii) If the Under Secretary for Benefits determines there is no
reasonable possibility that the veteran's disease resulted from
radiation exposure in service, the Under Secretary for Benefits shall so
inform the regional office of jurisidiction in writing, setting forth
the rationale for this conclusion.
(2) If the Under Secretary for Benefits, after considering any
opinion of the Under Secretary for Health, is unable to conclude whether
it is at least as likely as not, or that there is no reasonable
possibility, the veteran's disease resulted from radiation exposure in
service, the Under Secretary for Benefits shall refer the matter to an
outside consultant
in accordance with paragraph (d) of this section.
(3) For purposes of paragraph (c)(1) of this section, ``sound
scientific evidence'' means observations, findings, or conclusions which
are statistically and epidemiologically valid, are statistically
significant, are capable of replication, and withstand peer review, and
``sound medical evidence'' means observations, findings, or conclusions
which are consistent with current medical knowledge and are so
reasonable and logical as to serve as the basis of management of a
medical condition.
(d) Referral to outside consultants. (1) Referrals pursuant to
paragraph (c) of this section shall be to consultants selected by the
Under Secretary for Health from outside VA, upon the recommendation of
the Director of the National Cancer Institute. The consultant will be
asked to evaluate the claim and provide an opinion as to the likelihood
the disease is a result of exposure as claimed.
(2) The request for opinion shall be in writing and shall include a
description of:
(i) The disease, including the specific cell type and stage, if
known, and when the disease first became manifest;
(ii) The circumstances, including date, of the veteran's exposure;
(iii) The veteran's age, gender, and pertinent family history;
(iv) The veteran's history of exposure to known carcinogens,
occupationally or otherwise;
(v) Evidence of any other effects radiation exposure may have had on
the veteran; and
(vi) Any other information relevant to determination of causation of
the veteran's disease.
The Under Secretary for Benefits shall forward, with the request, copies
of pertinent medical records and, where available, dose assessments from
official sources, from credible sources as defined in paragraph
(a)(3)(ii) of this section, and from an independent expert pursuant to
paragraph (a)(3) of this section.
(3) The consultant shall evaluate the claim under the factors
specified in paragraph (e) of this section and respond in writing,
stating whether it is either likely, unlikely, or approximately as
likely as not the veteran's disease resulted from exposure to ionizing
radiation in service. The response shall set forth the rationale for the
consultant's conclusion, including the consultant's evaluation under the
applicable factors specified in paragraph (e) of this section. The Under
Secretary for Benefits shall review the consultant's response and
transmit it with any
[[Page 245]]
comments to the regional office of jurisdiction for use in adjudication
of the claim.
(e) Factors for consideration. Factors to be considered in
determining whether a veteran's disease resulted from exposure to
ionizing radiation in service include:
(1) The probable dose, in terms of dose type, rate and duration as a
factor in inducing the disease, taking into account any known
limitations in the dosimetry devices employed in its measurement or the
methodologies employed in its estimation;
(2) The relative sensitivity of the involved tissue to induction, by
ionizing radiation, of the specific pathology;
(3) The veteran's gender and pertinent family history;
(4) The veteran's age at time of exposure;
(5) The time-lapse between exposure and onset of the disease; and
(6) The extent to which exposure to radiation, or other carcinogens,
outside of service may have contributed to development of the disease.
(f) Adjudication of claim. The determination of service connection
will be made under the generally applicable provisions of this part,
giving due consideration to all evidence of record, including any
opinion provided by the Under Secretary for Health or an outside
consultant, and to the evaluations published pursuant to Sec. 1.17 of
this title. With regard to any issue material to consideration of a
claim, the provisions of Sec. 3.102 of this title apply.
(g) Willful misconduct and supervening cause. In no case will
service connection be established if the disease is due to the veteran's
own willful misconduct, or if there is affirmative evidence to establish
that a supervening, nonservice-related condition or event is more likely
the cause of the disease.
(Authority: Pub. L. 98-542)
[50 FR 34459, Aug. 26, 1985, as amended at 54 FR 42803, Oct. 18, 1989;
58 FR 16359, Mar. 26, 1993. Redesignated at 59 FR 5107, Feb. 3, 1994,
and amended at 59 FR 45975, Sept. 6, 1994; 60 FR 9628, Feb. 21, 1995; 60
FR 53277, Oct. 13, 1995; 63 FR 50994, Sept. 24, 1998; 67 FR 6871, Feb.
14, 2002]
Editorial Note: For Federal Register citations affecting Sec. 3.1,
see the List of Sections Affected, which appears in the Finding Aids
section of the printed volume and on GPO Access.
PART I -- DEPT OF VA
CFR
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