Citation Nr: 0305067 Decision Date: 03/18/03 Archive Date: 03/24/03 DOCKET NO. 96-44 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a liver disorder, including hepatitis C, and coronary artery disease, as a result of exposure to ionizing radiation. 2. Entitlement to service connection for seborrheic keratosis, as a result of exposure to ionizing radiation. 3. Entitlement to service connection for anemia, pancytopenia, and myelodysplasia, as a result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The veteran served on active duty from August 1945 to December 1948. This appeal arises from rating decisions of the Department of Veterans Affairs (VA), Huntington, West Virginia, regional office (RO). In December 1998, the veteran testified at a personal hearing before the undersigned Board Member. In May 1999, the Board remanded the case for additional development. Subsequently, an August 2002 rating decision granted service connection for actinic keratosis and pre- cancerous lesions of the face, neck, back, trunk, arms, legs, and right foot, as well as for multiple excisions of basal cell carcinoma lesions. The issues of entitlement to service connection for a liver disorder, including hepatitis C, coronary artery disease, anemia, pancytopenia, and myelodysplasia, all as a result of exposure to ionizing radiation, will be addressed in the Remand section below. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim for service connection for seborrheic keratosis has been developed by the RO. 2. The evidence establishes that the veteran was exposed to ionizing radiation as a result of participation in Operation CROSSROADS, a U.S. nuclear test series conducted at Bikini Atoll, the Marshall Islands, during 1946. 3. The weight of the medical evidence of record is against a finding that seborrheic keratosis was present during service, or that such disorder is related to the veteran's period of service or exposure to ionizing radiation in service. CONCLUSION OF LAW Seborrheic keratosis was not incurred in or aggravated by service and was not due to exposure to radiation in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103 (West Supp. 2002); 38 C.F.R. § 3.159(b) (2002). The veteran was notified in the September 1998 and August 2002 supplemental statements of the case (SSOCs) of the laws and regulations governing his claim. This was sufficient for notification of the information and evidence necessary to substantiate the claim, and the veteran has been adequately informed as to the type of evidence that would help substantiate his claim. The veteran was provided with a VA examination in September 1999, and private and VA hospitalization and outpatient records were obtained. The RO also obtained radiation dose assessments of the veteran, and obtained multiple opinions from the Undersecretary for Health that addressed the veteran's claim. The previous remand noted that a bioassay urinalysis of the veteran had been recommended. Unfortunately, research by the RO and the VAMC found that Congressional funding for this testing was not currently available. Thus, VA was unable to provide the veteran with the bioassay urinalysis. The August 2002 SSOC advised the veteran of attempts to obtain evidence, and informed him that VA would help him obtain additional evidence. The August 2002 SSOC specified what evidence the veteran must obtain to successfully prosecute his claim, what evidence VA had obtained and that VA had assisted him in obtaining the evidence that he had identified as relevant to his claim. The veteran submitted additional evidence in November 2002. He did not indicate that any additional evidence was available. See Quartuccio v. Principi, No. 01- 997 (U.S. Vet. App. June 19, 2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Accordingly, the Board finds that VA has satisfied its duty to notify and assist with respect to the claim for service connection for seborrheic keratosis and under the circumstances of this case, a second remand on this issue would serve no useful purpose. 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 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). According to the law, service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Service connection for a disability which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd, 120 F.3d. 1239 (Fed. Cir. 1997). First, direct service connection can be established by "show[ing] that the disease or malady was incurred during or aggravated by service," a task that includes the difficult burden of tracing causation to a condition or event during service." See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Second, in the absence of competent medical evidence linking a disability to service, there is a lifetime presumption for certain enumerated diseases without any requirement that it manifest to a specific degree, for those who meet the requirements of a radiation exposed veteran who engaged in radiation risk activity under § 1112(c)(3) and 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. The diseases referred to in the regulation prior to March 26, 2002 are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of salivary gland, and cancer of the urinary tract. Id. Finally, other "radiogenic" diseases, such as any form of cancer, listed under 38 C.F.R. § 3.311(b)(2), as amended by 63 Fed. Reg. 50993-50995 (Sept. 24, 1998), found 5 years or more after service (for most of the listed diseases) in an ionizing radiation exposed veteran may also be service- connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. "Radiogenic diseases" under this regulation include the following: all forms of leukemia except chronic lymphatic (lymphocytic) leukemia (manifest at any time after exposure), thyroid cancer, breast cancer, lung cancer, bone cancer (manifest within 30 years after exposure), liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary cancer, multiple myeloma, posterior subcapsular cataracts (manifest 6 months or more after exposure), non-malignant thyroid nodular disease, ovarian cancer and parathyroid adenoma. 38 C.F.R. § 3.311(b) (emphasis added). Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence which supports that finding. 38 C.F.R. § 3.311(b)(4). When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest 5 years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. §§ 3.311(b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is "at least as likely as not" that the disease resulted from in-service radiation exposure or whether, under § 3.311(c)(1)(ii), there is "no reasonable possibility" that the disease resulted from in-service radiation exposure. In this case, the record reflects that the veteran served on active duty from August 1945 to December 1948. Historical records confirm that he was present at Operation CROSSROADS, a U.S. nuclear test series conducted at Bikini Atoll, the Marshall Islands, in 1946. A letter from the Defense Threat Reduction Agency dated in March 2002 confirms his participation in that nuclear test series. That agency also reported an external radiation dose for the veteran of 0.6 rem gamma and 0.000 neutron. The internal dose was 0.0 (less than 0.01) rem. The skin dose was noted as 8.1 rem. Seborrheic keratosis was not noted in the veteran's service medical records or for many years following his separation from service in 1948. The first diagnosis of seborrheic keratosis in the record was in May 1994. This was a lesion on the infraorbital region. A June 1994 opinion by C.M.L., DDS, a dentist who treated the veteran noted that he had facial lesions diagnosed as seborrheic keratosis (as well as basal cell carcinoma and actinic keratosis), with a history of significant radiation exposure. Dr. L. stated that radiation exposure during service "certainly could be a contributing factor to the fact that he now has had a rash of new appearing lesions on the face, head and neck area, and on his extremities, all of which were exposed to radiation." A July 1995 statement from W.A.M., DMD, an oral surgeon, also noted that the veteran had diagnoses of basal cell carcinoma, actinic keratosis and seborrheic keratosis, and that exposure to radiation during service "could be a contributing factor to his current medical cutaneous lesions and cancers." Private medical records from A.G.S., D.O., dated in February and March 1999 noted the presence of seborrheic keratosis. Dr. S. described actinic keratosis as possibly related to radiation exposure, but he made no such statement with respect to seborrheic keratosis. A VA examination in September 1999 did not note the presence of seborrheic keratosis. Seborrheic keratosis is not among the diseases for which service connection may be granted on a presumptive basis under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Further, it is not among the recognized radiogenic diseases, which if present, warrant claims development under 38 C.F.R. § 3.311. However, as the veteran has submitted medical evidence suggesting that his seborrheic keratosis is a radiogenic disease, i.e., a disease that may be induced by ionizing radiation, or that the condition is otherwise related to service, VA was required to refer the claim to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). The Under Secretary for Benefits obtained an opinion dated in April 2002 from VA's Chief Public Health and Environmental Hazards Officer, with consideration of the most recent (March 2002) radiation dose assessment of the veteran. That opinion stated that "heredity and old age are the major etiologic factors for the development of seborrheic keratosis and radiation is not cited as a risk factor (Sauer, Manual of Skin Diseases, 1991, page 310)." The opinion went on to state that it was unlikely that seborrheic keratoses could be attributed to exposure to ionizing radiation in service. The preponderance of the evidence is against a finding that seborrheic keratosis was manifested in service or for many years following separation therefrom. In reaching this conclusion, the absence of pertinent findings in the service medical records weighs heavily against the claim, as does the absence of medical records relating to the claimed condition for more than 40 years after service. Most importantly, the VA Chief Public Health and Environmental Hazards Officer opined that heredity and old age are the most likely etiological factors for the development of seborrheic keratoses, and that radiation exposure is not a known risk factor. This opinion outweighs the equivocal statements of Drs. L. and M. that radiation exposure could be a contributing factor in the development of the veteran's basal cell carcinoma and other skin lesions. In this regard, the Board notes that Drs. L. and M. do not specifically link radiation exposure to seborrheic keratosis. Rather, their statements refer more generally to the veteran's skin conditions, which also include those for which service connection has already been granted, namely actinic keratosis and pre-cancerous lesions of the face, neck, back, trunk, arms, legs, and right foot, as well as multiple excisions of basal cell carcinoma lesions. Although the veteran contends that he has seborrheic keratosis due to exposure to ionizing radiation during his participation in Operation CROSSROADS in service, the Board notes that the veteran's opinion as to medical matters, no matter how sincere, is without probative value because he, as a lay person, is not competent to establish a medical diagnosis or draw medical conclusions; such matters require medical expertise. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In summary, the medical evidence does not demonstrate that seborrheic keratosis is a disorder recognized by the VA as etiologically related to exposure to ionizing radiation. Additionally, while the veteran has submitted medical opinions at least raising the suggestion that this disability, those opinions are outweighed by the expert findings of the Chief Public Health and Environmental Hazards Officer. The preponderance of the evidence is against the veteran's claim. As such, there is not an approximate balance of positive and negative evidence regarding the merits of the veteran's claim that would give rise to a reasonable doubt in favor of the veteran; the benefit-of-the- doubt rule is not applicable, and the appeal is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for seborrheic keratosis, as a result of exposure to ionizing radiation, is denied. REMAND As noted above, a revised radiation dose assessment dated in March 2002 is now of record. The August 2001 opinion of the Chief Public Health and Environmental Hazards Officer that addressed the veteran's claims pertaining to service connection for a liver disorder, including hepatitis C, coronary artery disease, anemia, pancytopenia, and myelodysplasia, all as a result of exposure to ionizing radiation, was based on an earlier radiation dose assessment. In light of the above, the Board is of the opinion that the case must be REMANDED to the RO for the following: 1. The RO should forward the veteran's case to the VA Undersecretary for Benefits for appropriate action under 38 C.F.R. § 3.311(c), to include an opinion from the VA Undersecretary for Health as to whether, based on the March 2002 radiation dose assessment, it is more likely, less likely or as likely as not that the veteran's liver disorder, including hepatitis C, coronary artery disease, anemia, pancytopenia, and myelodysplasia, were caused by radiation exposure in service. 2. Thereafter, the RO should readjudicate the claims on appeal. If any claim remains denied, the RO should provide the veteran and his representative a Supplemental Statement of the Case (SSOC) and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. THOMAS J. DANNAHER 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). In the 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.