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M21-1, Part IV, Subpart ii, Chapter 1, Section B – Claims for Service Connection for Radiogenic Diseases Under 38 CFR 3.309(d)

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2
3

1.  General Information on Claims for SC for Radiogenic Diseases Under 38 CFR 3.309(d)


Introduction

This topic contains general information on claims for SC for radiogenic diseases under 38 CFR 3.309(d), including

Change Date

September 5, 2008

IV.ii.1.B.1.a.  Presumption of SC Based on Participation in Certain Radiation-Risk Activities

A Veteran may be eligible for presumptive service connection (SC) under 38 CFR 3.309(d) (38 U.S.C. 1112) only if he/she participated in one of the following radiation-risk activities:
  • internment as a prisoner of war (POW) in Japan
  • post-war occupation of Hiroshima or Nagasaki
  • participation in atmospheric nuclear weapons testing
  • participation in underground nuclear weapons testing at Amchitka Island, Alaska, or
  • assignment to a gaseous diffusion plant at
    • Paducah, Kentucky
    • Portsmouth, Ohio, or
    • area K25 at Oakridge, Tennessee.

IV.ii.1.B.1.b.  History of Presumptive SC Based on Participation in Radiation-Risk Activities

Currently, there are 21 radiogenic diseases subject to presumptive SC in both live and death cases under 38 CFR 3.309(d).
Public Law (PL) 100-321, enacted May 1, 1988, initially established a presumption of  SC for 13 disabilities.  Eight additional disabilities were added following this original legislation.
Prior to August 14, 1991, the presumption of SC applied only to Veterans exposed to ionizing radiation while on active duty.
PL 102-86, enacted August 14, 1991, extended the presumption of SC to include persons exposed while on active duty for training or inactive duty for training.

IV.ii.1.B.1.c.  Who Is Eligible for Benefits Under 38 CFR 3.309(d)

Presumptive SC for the diseases listed in 38 CFR 3.309(d)(2) is available to Veterans involved in the radiation-risk activities specified in M21-1, Part IV, Subpart ii, 1.B.1.a.  Veterans are eligible based on participation in a radiation-risk activity while serving on
  • active duty
  • active duty for training, or
  • inactive duty training.

2.  Developing Claims for SC for Radiogenic Diseases Under 38 CFR 3.309(d)


Introduction

This topic contains information on developing claims for SC for radiogenic diseases under 38 CFR 3.309(d), including

Change Date

March 14, 2019

IV.ii.1.B.2.a.  Centralized Processing of Claims Based on Radiation Exposure

In October 2006, the Department of Veterans Affairs (VA) centralized the processing of all claims for SC based on radiation exposure at the Jackson Regional Office (RO).
The Jackson RO is responsible for developing and resolving
  • all claims for SC for presumptive disabilities resulting from exposure to ionizing radiation under 38 CFR 3.309(d), and
  • all non radiation-related claims received while the radiation issue is pending.
Notes:
  • The station in receipt of a claim for SC based on radiation exposure must
    • first verify the existence of a radiogenic disease, then
    • add the Radiation Radiogenic Disability Confirmed special issue indicator to the contention before the claim can be transferred to the Jackson RO for processing.
  • Following resolution of all pending issues, the Jackson RO will transfer the paper claims folder, if one exists, back to the station of origination.
  • Legacy appeals of radiation determinations, including remanded legacy appeals, are processed by the station to which they are assigned.  The Jackson RO does not maintain jurisdiction.
Reference:  For more information on jurisdiction on claims and legacy appeals involving radiation exposure, see

IV.ii.1.B.2.b.  Criteria to Consider Before Beginning Development of a Claim for SC for a Radiogenic Disease

Before undertaking development of a claim for SC for a radiogenic disease, the following criteria must be met:
  • one of the radiogenic diseases listed in 38 CFR 3.309(d)(2) must be shown to exist by medical evidence, and
  • the claimant must allege that the disability was the result of participation in a radiation-risk activity as defined in 38 CFR 3.309(d)(3).
Note:  Veterans seeking benefits in connection with exposure to nuclear radiation are authorized by the Exposure to Nuclear Radiation and DoD Secrecy Agreementto divulge to the VA the name and location of their command, duties performed, dates of service, and related information necessary to validate exposure to nuclear radiation.
Reference:  For more information on the Exposure to Nuclear Radiation and DoD Secrecy Agreement, see

IV.ii.1.B.2.c.  Action to Take if the Criteria for Development Are Not Met

If one of the criteria listed in M21-1, Part IV, Subpart ii, 1.B.2.b is not met
  • no further development under 38 CFR 3.309(d) is warranted, and
  • consider the claim as
Important:  If a listed cancer is a metastasis of a primary cancer that has not been service-connected on the basis of exposure to ionizing radiation under the provisions of 38 CFR 3.309(d) or 38 CFR 3.311, then SC cannot be awarded.

IV.ii.1.B.2.d.   Action to Take When Radiation Exposure Is Alleged, but No Disability Is Claimed

A claim is not substantially complete if a Veteran alleges exposure to radiation during service, but does not claim SC for a specific disability.  In cases such as these, follow the procedures for handling an incomplete application at M21-1, Part I, 1.B.1.g and h.
Reference:  For more information on what constitutes a substantially complete application, see

IV.ii.1.B.2.e.  Source for Information on Radiation Risk Activities

The Department of Defense (DoD) is the source of information concerning the Veteran’s participation in radiation-risk activity.
Send the following requests for verification to the Defense Threat Reduction Agency (DTRA):
  • U.S. atmospheric nuclear weapons tests
  • occupational forces in Hiroshima or Nagasaki, or
  • internment as a POW in Japan who was subject to the same conditions as occupational forces.
Address:
Defense Threat Reduction Agency
ATTN:  RD-NTSN
Stop 6201
8725 John J. Kingman Road
Ft. Belvoir, VA  22060-6201.
Notes:
  • Direct any questions on requesting verification from DTRA to theVAVBAWAS/CO/21Q&A mailbox.
  • Historical names for DTRA include the
    • Defense Special Weapons Agency
    • Defense Nuclear Agency
    • U.S. Army and Joint Services Environmental Support Group, and
    • Army/Navy Nuclear Test Personnel Review.
Reference:  For information on how to handle verification requests pertaining to participation in non-U.S. atmospheric nuclear weapons tests, see M21-1, Part IV, Subpart ii, 1.C.3.c.

IV.ii.1.B.2.f.  Information That Must Be Included in the Development Letter to DTRA

Development letters to DTRA must contain the following information
  • the Veteran’s and claimant’s
    • name
    • address, and
    • telephone number
  • the Veteran’s
    • branch of military service
    • military service number, and
    • Social Security number
  • the name of the Veteran’s organization or unit of assignment at the time of exposure
  • the dates of assignment(s)
  • a full description of the duties and activities of the Veteran while a participant in a radiation-risk activity
  • the specific disease entity, and
  • a citation of the specific regulation under which the request is made.
Notes:
  • The specific disease entity must be consistent with those in 38 CFR 3.309(d)(2).
  • Simply stating “cancer” is not adequate.  State the more specific description, such as “cancer of the thyroid.”
Reference:  For a sample development letter to DTRA, see M21-1, Part IV, Subpart ii, 1.B.3.

IV.ii.1.B.2.g.  Additional Information to Include in the Development Letter to DTRA

In addition to the development letter, enclose a copy of the claimant’s statement about his/her activities.
Military personnel who served in Japan after the end of World War II must have been a part of the occupation forces to be eligible for presumptive SC.
If the claims folder contains VA Form 21-3101, Request for Information, on which the National Personnel Records Center has stated that the Veteran was a member of the occupation forces of Japan, attach the VA Form 21-3101 to the request to DTRA.
If development includes a request for a dose assessment under 38 CFR 3.311 for disabilities not covered under 38 CFR 3.309(d), enclose copies of the available military documents provided by the claimant, such as the discharge certificate, orders, and other records in support of the claim, provided in response to development under M21-1, Part IV, Subpart ii, 1.C.4.a.
Note:  If the claimant’s statement contains all the elements listed in M21-1, Part IV, Subpart ii, 1.B.2.f, the requester may refer to the claimant’s statement rather than repeat the information in the development letter.  Use the term, “attached document” in the development letter when referring to the claimant’s statement.

3.  Exhibit 1:  Sample Letter for Requesting Verification of Participation in a Radiation-Risk Activity or Radiation Dose Information From DTRA


Introduction

This exhibit contains a sample letter for requesting verification of participation in a radiation-risk activity or radiation dose information from DTRA.

Change Date

May 8, 2015

IV.ii.1.B.3.a.  Sample Letter – Page 1

Page 1 of a sample letter for requesting verification of participation in a radiation-risk activity or radiation dose information from DTRA is shown below.
Note:  If additional disabilities are claimed under 38 CFR 3.311, and a dose estimate is required, send a letter requesting dosimetry information to the appropriate service department as identified by M21-1, Part IV, Subpart ii, 1.C.4 and M21-1, Part IV, Subpart ii, 1.C.3.f.
Defense Threat Reduction Agency                                                         00/21
ATTN: RD-NTSN                                                                         C 12 345 679
8725 John J. Kingman Road, Stop 6201                                      JONES, John
Ft. Belvoir, VA 22060-6201

Dear Sir/Madam:

We have received a claim for service connection under the provisions of 38 CFR 3.309 for conditions allegedly due to the Veteran’s participation in a radiation-risk activity.

Veteran’s identifying information:
Full name: John A. Jones
VA Claim No: C 12 345 679
Social Security No: 234 56 7890
Branch of Service: Navy
Service No: 246 81 23
Assigned Unit at time of test: USS SEVERN (AO-61)

Full description of the Veteran’s duties and activities while a participant in the radiation-risk activity:

The Veteran, Mr. Jones, participated in OPERATION CROSSROADS (ABLE & BAKER) from July 7, 1946, to August 24, 1946. His duties and activities included service as a cook.


IV.ii.1.B.3.b.  Sample Letter – Page 2

Page 2 of a sample letter for requesting verification of participation in a radiation-risk activity or radiation dose information from DTRA is shown below.
Important:  If the claim is being developed under 38 CFR 3.309(d), the radiogenic disease shown on the letter must be on the list of presumptive diseases under 38 CFR 3.309(d)(2).
The alleged radiogenic disease is THYROID CANCER. A copy of the claimant’s statement is enclosed.

The claimant’s name and address is:

John A. Jones
793 Smith St.
Hometown, CA 92027

Please verify the Veteran’s participation in the radiation risk activity described above.

Please send your reply to [enter RO address, as shown below]:

Department of Veterans Affairs
Regional Office
1600 E. Woodrow Wilson Ave
Jackson, MS 39216

Your assistance in this matter is appreciated.

Sincerely yours,

[RO Director]

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