Citation Nr: 0211672 Decision Date: 09/10/02 Archive Date: 09/19/02 DOCKET NO. 01-01 062 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to service connection for skin cancer of the face, hands, back, and left ear. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Masterson, Associate Counsel INTRODUCTION The veteran had active military service from October 1945 to December 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2000 RO rating decision. This case was previously before the Board in August 2001, when it was remanded for additional development. FINDING OF FACT The veteran's tropical sun exposure while in service likely resulted in basal cell carcinoma and squamous cell carcinoma. CONCLUSION OF LAW The veteran has basal cell carcinoma and squamous cell carcinoma that are the result of disease or injury incurred during active military service. 38 U.S.C.A. § 1110 (West Supp. 2002); 38 C.F.R. § 3.303 (2001). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran argues that his skin cancer of the face, back, ears, and hands should be service connected because he was exposed to radiation during service, resulting in his skin cancer. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. § 1110 (West Supp. 2002); 38 C.F.R. § 3.303(a) (2001). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 U.S.C.A. §§ 1101, 1112 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (2001). Further, if a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303. Service connection may be granted for a disease first diagnosed after service when all of the evidence establishes that the disease was incurred in service. Id. Service connection for a disability claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Hilkert v. West, 12 Vet. App. 145 (1999); aff'd, 232 F.3d 908 (Fed. Cir. 2000) (table). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans under 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, service connection may be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is one of the "radiogenic diseases" listed in 38 C.F.R. § 3.311(b). Third, direct service connection may be established under 38 C.F.R. § 3.303(d) by showing that the disease or malady was incurred during or aggravated by service Certain specified disabilities becoming manifest in a "radiation-exposed veteran" shall be service connected. See 38 U.S.C.A. § 1112(c)(1), (2); 38 C.F.R. § 3.309(d)(1), (2). The term "radiation-exposed veteran" means a veteran who participated in a "radiation-risk activity." See 38 U.S.C.A. § 1112(c)(3)(A); 38 C.F.R. § 3.309(d)(3)(i). The term "radiation-risk activity" means onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war of Japan during World War II resulting in an opportunity for exposure to radiation comparable to those occupying Hiroshima or Nagasaki; or certain service on the grounds of a gaseous diffusion plant in Paducah Kentucky, Portsmouth, Ohio, or at area K25 at Oak Ridge Tennessee; or certain service on Amchitka Island, Alaska. See 38 U.S.C.A. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii). VA has established special procedures to follow for those seeking compensation for diseases related to exposure to radiation in service. See Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, 98 Stat. 2725 (1984); 38 C.F.R. § 3.311. This regulation provides that: In all claims in which it is established that a radiogenic disease first became manifest after service . . . 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 . . . 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. Hilkert, 12 Vet. App. at 148; 38 C.F.R. § 3.311(a)(1). This regulation establishes a series of chronological obligations upon both parties. See Wandel v. West, 11 Vet. App. 200 (1998). First, the veteran must establish that he suffers from a radiogenic disease. See 38 C.F.R. § 3.311(b)(2). This disease must manifest within a certain time period. See 38 C.F.R. § 3.311(b)(5). Once a claimant has established a diagnosis of a radiogenic disease within the specified period and claims that the disease is related to radiation exposure while in service, VA must then obtain a dose assessment. 38 C.F.R. § 3.311(a)(1). After it is determined by the dose assessment that the veteran was exposed to radiation, the RO is then required to refer the case to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311(b); Hilkert, 12 Vet. App. at 148. When the claim is referred, the Under Secretary for Benefits shall consider the claim with reference to the factors specified in 38 C.F.R. § 3.311(e) and may request an advisory opinion from the Under Secretary for Health. 38 C.F.R. § 3.311(c)(1); Hilkert, 12 Vet. App. 145 After referral, the Under Secretary for Benefits must then determine the likelihood that the claimant's exposure to radiation in service resulted in the radiogenic disease. See 38 C.F.R. § 3.311(c)(1). This section provides two options: (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 jurisdiction, in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311(c)(1); Hilkert, 12 Vet. App. 148-49. Since this determination relies heavily on medical and scientific findings and analysis, the Under Secretary for Benefits may request an advisory opinion from the Under Secretary for Health to assist in carrying out the obligation imposed by this regulation. See 38 C.F.R. § 3.311(c)(1) (authorizing the Under Secretary for Benefits to request an advisory opinion from the Under Secretary for Health). Two recent VA regulations related to radiation do not affect the outcome in this case. A revision to 38 C.F.R. § 3.311(b)(3) and (b)(4), effective February 14, 2002 (67 Fed. Reg. 6870-6871 (2002)), involves only one disability, polycythemia vera, which is not at issue in this case. A revision to 38 C.F.R. § 3.309(d), effective March 26, 2002 (67 Fed. Reg. 3612-3616 (2002)), adds cancers of the bone, brain, colon, lung, and ovary to the list of diseases that may be presumptively service connected. Again, those disabilities are not subjects of the veteran's claim. The regulation further amends the definition of the term "radiation-risk activity" to include veterans' presence at certain additional locations. Since the veteran has already been acknowledged to be a radiation-exposed veteran, as will be discussed below, this new regulation is not pertinent to this case. Presumptive Service Connection Under 38 C.F.R. § 3.309 Private medical records from M.D.S., M.D., reveal that the veteran was diagnosed with basal cell carcinoma of the left ear in April 1997. He was diagnosed with squamous cell carcinoma of the jaw in November 1998. Correspondence from the Defense Threat Reduction Agency (DTRA), dated in February 2000, confirms that the veteran participated in Operation CROSSROADS, an atmospheric nuclear test series consisting of two detonations and occurring at the Bikini Atoll in July 1946. The veteran arrived in the Marshall Islands aboard U.S.S. Chowanoc in May 1946. It was noted that dosimetry records had not been located for the veteran, indicating that he likely was not issued film badges during the operation. It was further noted that in the absence of such dosimetric data, the veteran's dose was reconstructed on the basis of his known or presumed activities at CROSSROADS. The veteran's total reconstructed dose was 0.9 rem, with an upper bound of 2.2 rem. It was noted that the veteran was exposed to contaminated water that splashed back onto the Chowanoc during the washdown of target ships, leading to a beta radiation dose of as much as 0.7 rem to the skin. A skin dose assessment concluded that the dose to the skin of the veteran's face, back, and hands was 2.9 rem. Therefore, as his exposure to ionizing radiation during service is clearly evident, this point is conceded. However, although the veteran met the criteria for a "radiation- exposed veteran" under 38 U.S.C.A. § 1112(c)(3) and 38 C.F.R. § 3.309(d)(3), basal cell carcinoma and squamous cell carcinoma are not among the "radiogenic diseases" listed under either 38 U.S.C.A. § 1112(c)(2) or 38 C.F.R. § 3.309(d)(2) as being recognized by VA--on a presumptive basis--as a residual of such exposure. Accordingly, service connection for skin cancer may not be presumed under 38 U.S.C.A. § 1112(c) or 38 C.F.R. § 3.309(d)(2). Service Connection for a Radiogenic Disease Under 3.311 Service connection, however, also may be established for disabilities deemed as "radiogenic diseases" pursuant to 38 C.F.R. § 3.311. Skin cancer is considered to be a potentially radiogenic disease under this regulation. See 38 C.F.R. § 3.311(b)(2). In addition, the veteran's skin cancer was clearly manifested at least five years after exposure. See 38 C.F.R. § 3.311(b)(5). Consequently, the veteran is entitled to the procedural advantages set forth in 38 C.F.R. § 3.311 (2001). However, 38 C.F.R. § 3.311 requires that a causal link be demonstrated between radiation exposure in service and the subsequent development of skin cancer. Under 38 C.F.R. § 3.311, causation is not presumed but must be shown. Moreover, under the relevant sections of 38 C.F.R. § 3.311, when a radiogenic disease manifests itself subsequent to service and it is contended that the disease is a result of exposure to ionizing radiation in service, a dose assessment as to the size and nature of the radiation must be made. In this regard, as stated above, the veteran submitted evidence to show that he was diagnosed with a radiogenic disease and claimed that his exposure to radiation while in military service caused this disease. Pursuant to the regulation--38 C.F.R. § 3.311(a)(2)(i)--the RO then requested a dose assessment from the DTRA. As stated above, the DTRA responded in February 2000, by confirming that the veteran was present at Operation CROSSROADS. As indicated above, the veteran's dose was reconstructed on the basis of his known or presumed activities at CROSSROADS. It was estimated that the veteran accrued 0.76 rem while aboard Chowanoc from July 1, 1946 until the ship's departure from the Bikini Atoll. It was further noted that the veteran accrued 0.14 rem thereafter until he departed from the ship on November 18, 1946. It was noted that the dose that resulted from the contaminated water splashed onto the ship while spraying down target vessels was much less than 0.01 rem. The veteran's total reconstructed dose was 0.9 rem, with an upper bound of 2.2 rem. It was noted that the veteran was exposed to contaminated water that splashed back onto the Chowanoc during the washdown of target ships. This lead to a beta radiation dose of as much as 0.7 rem to the skin. A skin dose assessment concluded that the radiation dose to the skin of the veteran's face, back, and hands was 2.9 rem. After receiving confirmation of radiation exposure, the RO properly referred the claim to the Director of Compensation and Pension for review who acted on behalf of the Under Secretary for Benefits in May 2000. Due to the nature of the claim, the Director of Compensation and Pension requested an advisory opinion from the Under Secretary for Health regarding the relationship between the veteran's disability and exposure to ionizing radiation in service. The veteran and his representative were apprised of this medical opinion request in a May 2000 letter. Susan H. Mather, M.D., writing the opinion for the Under Secretary for Health, who as the Chief Public Health and Environmental Hazards Officer of the Veterans Health Administration, submitted a statement in June 2000. Dr. Mather indicated that she had reviewed the Defense Threat Reduction Agency estimates that the veteran was exposed to the following doses of ionizing radiation during military service: external neutron - 0.000 rem; external gamma - 0.9 rem with an upper bound of 2.2 rem; and dose to the skin of the face, back, and hands -2.9 rem. Dr. Mather opined that it was unlikely that the veteran's basal and squamous cell skin cancers could be attributed to exposure to ionizing radiation in service. As support for her opinion, Dr. Mather noted that the Committee on Interagency Radiation Research and Policy Coordination (CIRRPC) Science Panel Report Number 6, 1988 did not provide screening doses for skin cancer, and that skin cancer had been attributed to ionizing radiation at high doses, e.g., several hundred rads. Dr. Mather indicated that according to the Health Effects of Exposure to Low Levels of Ionizing Radiation (BEIR V), 1990, pages 325-327, excess numbers of basal cell cancers also had been reported in skin which received estimated doses of 9 to 12 rads in margins of irradiated areas. Dr. Mather also cited Ron, Skin Tumor Risk Among Atomic-Bomb Survivors in Japan, Cancer Causes and Control, Volume 9, 1988, page 395, and said that an increased risk for basal cell, but not squamous cell skin cancers had been seen in atomic bomb survivors. (Ron et al., Skin Tumor Risk Among Atomic-Bomb Survivors in Japan, Cancer Causes and Control, Volume 9, 1988, page 395). After receiving Dr. Mather's June 2000 report, the Director of Compensation and Pension advised the RO, in a letter dated in June 2000, that it was unlikely that the veteran's basal and squamous cell skin cancers could be attributed to ionizing radiation in service. Also of record is a September 2000 statement from Dr. S. Dr. S. indicated that the veteran's exposure to the energy of two atomic bombs greatly potentiated his potential for skin cancers. Pursuant to the Board's remand, the veteran was afforded a VA examination in April 2002. The veteran gave a history of basal cell carcinoma on his lateral left helix, and squamous cell carcinoma on the right angle of his jaw. Upon physical examination, the veteran had several hyperkeratotic, erythematous 2 to 4 millimeter edematous patches on his scalp, nose, and cheeks. He was diagnosed with a history of skin cancer. The examiner noted that the veteran's changes could be seen with radiation exposure. The examiner noted that there was an increased risk of non-melanotic skin cancer, such as basal cell carcinoma and squamous cell carcinoma, after radiation exposure. She indicated that it was difficult to tell whether this was directly related to radiation exposure or cumulative sun exposure, or a combination of both. Consequently, although the VA examiner and the veteran's private physician speculate that the veteran's skin cancer could be related to his radiation exposure in service, given the conclusion by VA's Chief Public Health and Environmental Hazards Officer based on a thorough review of the veteran's radiation exposure and medical treatises, the Board finds that service connection cannot be granted under 38 C.F.R. § 3.311. Nevertheless, as will be discussed below, the evidence favors a grant of service connection for skin cancer on a direct basis due to sun exposure. Direct Service Connection Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 Fed.3d 1039 (Fed. Cir. 1994). In the veteran's case, however, service connection is established not based on the veteran's exposure to radiation while in service, but based on his exposure to the tropical sun while in service. In the veteran's case, service medical records are negative for complaints, treatment, and diagnoses of skin cancer. As stated above, private medical records reveal that the veteran was diagnosed with basal cell carcinoma of the left ear in April 1997 and with squamous cell carcinoma of the jaw in November 1998. Of record is a July 1999 statement from Dr. S. Dr. S. indicated that he began treating the veteran in August 1994 for treatment of lesions, including multiple actinic keratoses, induced by accumulation of solar damage in his skin over the years. Also of record are statements from Dr. S. dated from September 2000 to January 2002. Dr. S. indicated that the veteran's exposure to the tropical sun while on active duty greatly potentiated his skin damage and potential for skin cancers. Dr. S. indicated that there were reports of dermatologic literature correlating exposure of Armed Forces personnel to tropical sun alone (without exposure from atomic bomb blasts) as greatly potentiating skin sun damage and skin cancers. As stated above, the veteran was afforded a VA examination in April 2002. He was diagnosed with a history of skin cancer, and the examiner noted that the veteran's changes could be seen with extensive sun exposure, as well as radiation exposure. The examiner noted that there was an increased risk of non-melanotic skin cancer, such as basal cell carcinoma and squamous cell carcinoma, in fair skin individuals with extensive sun exposure. She indicated that it was difficult to tell whether the veteran's skin cancer was directly related to radiation exposure or cumulative sun exposure, or a combination of both. After reviewing the evidence of record, and granting the veteran the benefit of the doubt in the matter, the Board finds that the veteran's skin cancer is related to service due to his in-service exposure to the tropical sun. Although the evidence does not indicate that the veteran has had skin cancer of the back or hands, the evidence clearly shows that the veteran has a current disability as he has had skin cancer of the ear and of the face. Additionally, the record contains competent medical evidence that links the veteran's skin cancer of the ear and of the face to service. In this regard, both the VA examiner and the private medical physician have indicated that the veteran's skin cancer could be linked, at least in part, to sun exposure in service. In fact, Dr. S. specifically indicated several times that the veteran received tropical sun exposure while in service, and exposure to tropical sun alone, even without exposure from atomic bomb blasts, greatly potentiates skin cancer. Therefore, the evidence taken as a whole tends toward the conclusion that the veteran's skin cancer was caused by his tropical sun exposure while in service. Importantly, unlike the veteran's claim for service connection based on in- service radiation exposure, the Board notes that none of the relevant medical evidence specifically refutes the claim of a connection between the veteran's skin cancer and his tropical sun exposure while in service. To that extent, the veteran's claim of service connection for skin cancer, to the extent that it pertains to basal and squamous cell carcinomas of exposed skin areas, is granted. 38 C.F.R. § 3.303. Finally, the Board acknowledges that the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2002)) has been enacted during the pendency of this appeal. The Act has clarified VA's duty to assist claimants in developing evidence pertinent to their claims and eliminated the previous requirement that a claim be well grounded before VA's duty to assist arises. Additionally, certain notification requirements have been set out by the new law. Nevertheless, given that the Board's decision amounts to a grant of the benefit sought by the veteran on appeal, the Board finds that action to further comply with these new requirements is not necessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no additional benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426,430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). ORDER Service connection is granted for basal cell carcinoma and squamous cell carcinoma on the claimed exposed areas of skin. MARK F. HALSEY Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.