Prec 15-99    Validity of Regulatory Provisions Precluding Service Connection of Polycythemia Vera Based on Exposure to Ionizing Radiation     Citation: Vet. Aff. Op. Gen. Couns. Prec. 15-99,  VAOPGCPREC 15-99, 1999 

Are the provisions of 38 C.F.R. § 3.311(b)(3) and (4) valid insofar as they appear to preclude claimants from establishing that polycythemia vera was incurred as the result of exposure to ionizing radiation in service?

Paragraphs (b)(3) and (b)(4) of 38 C.F.R. § 3.311 are inconsistent with 38 U.S.C. § 1113(b) to the extent that those regulatory provisions purport to preclude a claimant from establishing by evidence that a particular veteran incurred polycythemia vera as the result of exposure to ionizing radiation in service. The Department of Veterans Affairs (VA) may not rely upon 38 C.F.R. § 3.311(b)(3) and (4) as a basis for summarily denying any claim that polycythemia vera was incurred as a result of exposure to ionizing radiation in service. Rather, VA must give a claimant the opportunity to

submit evidence to establish that a particular veteran incurred polycythemia vera as the result of exposure to ionizing radiation in service.