# Davis v. Gober

> United States Court of Appeals for Veterans Claims · July 28, 1997 · 10 Vet. App. 328

URL: https://www.frixlaw.com/law-library/cases/8167253

## Case

- **Full name:** James P. DAVIS v. Hershel W. GOBER, Acting Secretary of Veterans Affairs
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** July 28, 1997
- **Citations:** 10 Vet. App. 328; 1997 U.S. Vet. App. LEXIS 582; 1997 WL 418446
- **Precedential status:** Published
- **Opinion:** Concurrence by Kramer
- **Judges:** Farley, Holdaway, Ivers, Kramer, Nebeker, Steinberg
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8167253

## Opinion text

KRAMER, Judge,
concurring:
The appellant moves for reconsideration of the Court’s April 29, 1997, decision on the basis that the Secretary of Veterans Affairs has failed to promulgate regulations, pursuant to the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, Pub.L. No. 98-542, 98 Stat. 2725 (1984) [hereinafter 1984 Act], establishing “actual findings as to exposure and threshold dosage.” Motion for Reconsideration (MRC) at 3.
In so arguing, the appellant relies on the last sentence of Section 5(b)(2)(A)(i) of the 1984 Act and certain legislative history accompanying the 1984 Act’s passage. MRC at 2.
To the extent that the appellant argues that any dose estimate as to the appellant should be determined only by regulation, I note the following: First, the appellant acknowledges that the Secretary of Defense, rather than the Secretary of Veterans Affairs, has the responsibility for making radiation determinations. MRC at 3. Second, section 5(b)(2)(A)(i),(ii) and (iii) contemplate individual, rather than generic adjudication. Third, a regulation that by definition is generic, could not determine a dose estimate in an individual case.
To the extent that the appellant argues that the Secretary should establish under the 1984 Act a minimum dose threshold, which, if met, would mandate service connection, I note the following: First, as previously indicated, the 1984 Act contemplates individual adjudication. Second, the language relied upon by the appellant requires the Secretary to establish limitations on service connection, rather than entitlements. Examples of such limitations are 38 C.F.R. § 3.311 (b)(3) and (5) and § 3.311(e). Paragraph (b)(3) excludes a certain disease as a radiogenic disease. Paragraph (b)(5) sets time frames in which radiogenic diseases must manifest themselves. Paragraph (e) sets forth factors to *329 be considered in determining whether a radiogenic disease should be service connected.
To the extent that the appellant argues that the 1984 Act requires the Secretary to set minimum dosage requirements for service connection, even assuming that the Act requires the promulgation of such a floor, it would constitute a limitation on service connection. As a consequence, any error committed by the Secretary of Veterans Affairs in failing to promulgate such a floor constitutes nonprejudicial error as to a potential claimant such as the appellant. See 38 U.S.C. § 7261 (a), (b) (in interpreting statutory provisions, Court shall take due account of prejudicial error).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8167253. Public record. Not legal advice.