Citation Nr: 0927283 Decision Date: 07/22/09 Archive Date: 07/30/09 DOCKET NO. 07-32 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for fibrous carcinoma of the left forehead (skin cancer of the left forehead), to include as secondary to radiation and/or sun exposure. 2. Entitlement to service connection for epidural carcinoma of the right neck (salivary gland cancer), status-post parotidectomy and right radical neck dissection, to include as secondary to radiation and/or sun exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1942 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2006 and October 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied the benefits sought on appeal. In May 2009, the Veteran appeared and testified at a Travel Board hearing at the San Diego RO. The transcript is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran is not currently diagnosed as having skin cancer of the left forehead attributable to his period of active duty, nor was he exposed to radiation which could have caused his skin cancer. 3. The Veteran is not currently diagnosed as having salivary gland cancer attributable to his period of active duty, nor was he exposed to radiation which could have caused his salivary gland cancer. CONCLUSIONS OF LAW 1. Skin cancer of the left forehead was neither incurred in, nor aggravated by active service, nor was it due to exposure to radiation. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2008). 2. Salivary gland cancer was neither incurred in, nor aggravated by active service, nor was it due to exposure to radiation. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a Veteran of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a Veteran in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters dated in October 2004, March 2005, and May 2006, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim for service connection, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also generally advised the Veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was provided in the May 2006 notice. As such, the Board finds that VA met its duty to notify the Veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the initial October 2004 notice was given prior to the appealed AOJ decisions dated in February 2006 and October 2006. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence, and by affording him the opportunity to give testimony before an RO hearing officer and/or the Board. In May 2009, the Veteran appeared and testified at a Travel Board hearing at the RO. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the Veteran's claims file. Thus, the Board finds that VA has done everything reasonably possible to notify and assist the Veteran and that no further action is necessary to meet the requirements of the VCAA. The Veteran essentially contends that his skin cancer of the left forehead and cancer of the salivary gland were either related to sun and/or radiation exposure in service. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a condition that is claimed to be attributable to ionizing radiation exposure during service may be established in one of three different ways, which have been outlined by the United States Court of Appeals for Veterans Claims (Court). See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Ruker v. Brown, 10 Vet. App. 67, 71 (1997). First, where it is contended that disease developed as a result of exposure to ionizing radiation during service, service incurrence may be presumed under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) for veterans who participated in defined radiation risk activities and have certain diseases. 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 certain conditions are met. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). As it applies to 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), the term "radiation-exposed veteran" means a veteran who participated in a "radiation-risk activity." 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; 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; 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). Diseases presumptively service connected for radiation- exposed veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) are leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, 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 the salivary gland, cancer of the urinary tract, bronchiolo-alveolar carcinoma, cancer of the bone, cancer of the brain, cancer of the colon, cancer of the lung, and cancer of the ovary. 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d)(2). As noted above, in radiation claims, the second approach is found in 38 C.F.R. § 3.311. To consider a claim under § 3.311, the evidence must show the following: (1) the veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and (3) such disease first became manifest within a period specified by the regulation. 38 C.F.R. § 3.311(b). If any of the foregoing three requirements has not been met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311. 38 C.F.R. § 3.311(b)(1)(iii). For purposes of 38 C.F.R. § 3.311, the term "radiogenic disease" means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2). The regulation states that the term radiogenic disease shall include (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. 38 C.F.R. § 3.311(b)(2). If a claim is based on a disease other than one listed in the previous paragraph, VA shall nevertheless consider the claim under 38 C.F.R. § 3.311, provided the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. 38 C.F.R. § 3.311(b)(4). Section 3.311(a) calls for the development of a radiation dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either 38 C.F.R. § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing and in claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims involving radiation exposure, the VA Under Secretary for Health will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. Id. Finally, direct service connection can be established by "showing that the disease or malady was incurred during or aggravated by service," a task which "includes the difficult burden of tracing causation to a condition or event during service." Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran's service treatment records (STRs) reflect no complaints of or treatment for sun damage and/or exposure to radioactive materials, nor has the Veteran so contended. Based upon the evidence of record, the first post-service treatment related to skin cancer and salivary gland cancer was in the late 1970s. There is no question that the Veteran has a history of skin cancer of the left forehead and salivary gland cancer, and both are radiogenic diseases pursuant to the regulations. Relevant treatment records reflect treatment and removal of cancerous lesions and tumors in those areas. These records, however, do not reflect an opinion linking the Veteran's skin and salivary cancers to service. The main question before the Board is whether the Veteran is considered a radiation- exposed veteran or whether his skin cancer and salivary gland cancer are causally or etiologically related to service. The Veteran has contended that he was exposed to radiation and sun during service. In his September 2004 claim, he indicated that he was exposed to cancer-causing agents on the Japanese proving grounds where he was ordered to destroy war materials. He did not, however, indicate to which cancer- causing agents he was exposed. He indicated that he was treated for both cancers in the late 1970s and early 1980s. Post-service treatment records do not indicate that the Veteran's skin cancer was caused by exposure to sun and/or any radioactive agents during service. In a November 2005 statement, the Veteran indicated that he had "cancer radiation" during service from desert sun exposure. In a February 2006 letter, the Veteran indicated that he had been where "two atom bombs had ended the war," but in a statement received in September 2006, the Veteran indicated that he and his unit "were never close to Hiroshima or Nagasaki." In his May 2009 Travel Board hearing, the Veteran essentially testified to being exposed to a higher degree of sun in service than prior to and post service. The Veteran confirmed that he was not in Nagasaki or Hiroshima. He again related that he was responsible for destroying weapons while stationed in Japan and believed that his skin and salivary gland cancers were related to his service. Given the evidence as outlined above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for skin cancer and salivary gland cancer. Skin cancer is not listed under 38 C.F.R. § 3.309(d)(2), as being presumed due to radiation exposure in radiation-exposed veterans. Although cancer of the salivary gland is one of the presumptive diseases under 3.309(d), there is no evidence to support a finding that the Veteran was a radiation-exposed veteran as contemplated under 38 C.F.R. § 3.309(d). The Veteran had service in Japan, but morning reports reflect that the Veteran was not within 10 miles of either Nagasaki or Hiroshima as required by regulation. As skin cancer is not a presumptive disease, and he is not a "radiation- exposed veteran," the Veteran is not entitled to the presumptions of 3.309(d) for his claim of entitlement to service connection for skin cancer and salivary gland cancer. Because skin cancer and cancer of the salivary gland are both listed as "radiogenic diseases" under 38 C.F.R. § 3.311, and because the Veteran is asserting that his exposure to ionizing radiation in Japan resulted in these cancers, consideration of the provisions of 38 C.F.R. § 3.311 is appropriate in this case. As directed under 38 C.F.R. § 3.311, the RO appropriately requested whether the Veteran had any radiation exposure. In January 2006, VA requested verification of the Veteran's participation in radiation risk activity during service from the Defense Threat Reduction Agency (DTRA). In a response the next month, the Nuclear Test Personnel Review contact indicated that according to the morning reports, the Veteran's unit was not present within the American occupation forces in Hiroshima or Nagasaki, Japan, as required by pertinent regulation. Thus, there is no evidence of record to reflect that the Veteran was exposed to ionizing radiation. As actual radiation exposure during service is not shown by the evidence, service connection for skin cancer and salivary gland cancer as a result of radiation exposure is not warranted under the presumptive requirements of 38 C.F.R. § 3.309 or the alternative framework of 38 C.F.R. § 3.311. Any exposure to ionizing radiation may not be conceded as the DTRA report disproves the Veteran's contention that he was exposed to ionizing radiation. The requirements of §§ 3.309 and 3.311 are not met. Furthermore, although skin cancer and salivary gland cancer are recognized as a radiogenic diseases, as discussed above, the Veteran does not meet other regulatory requirements to establish service connection as he is not shown to have been exposed to radiation. Without corroborative evidence of radiation exposure, any determination that the Veteran is entitled to the benefit provided by 38 C.F.R. § 3.311 would be based on nothing more than speculation, which is not permitted under the law. Absent a finding that the Veteran participated in a radiation risk activity, the Veteran is also not entitled to service connection of his skin and salivary gland cancers under 38 C.F.R. § 3.311(b)(2). As such, service connection for skin and salivary gland cancers are denied both on a presumptive basis (38 C.F.R. § 3.309) and pursuant to 38 C.F.R. § 3.311. The Veteran is also not entitled to service connection for skin and salivary gland cancers on a direct basis. The Veteran has reported sun exposure in service and has indicated that it was of a higher degree than when he was not in service. Consistent with the Veteran's assertions, there is no evidence that he was treated in service for sun damage or exposure to radioactive materials, nor was he treated for any skin condition in the head and neck area. Additionally, relevant treatment records reflect the onset of his skin and salivary gland cancers as occurring in the late 1970s and early 1980s. This is over 30 years following his separation from service. As noted above, there are no clinical opinions of record linking the Veteran's skin and salivary gland cancers to a disease or injury incurred in service, including the alleged exposure to sun and radioactive materials. The Board is sympathetic to this Veteran's assertions, but the only evidence of record linking the Veteran's alleged in- service sun exposure to his skin and salivary gland cancers is his own statements. The Veteran is competent, as a layman, to report that as to which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). He is not, however, competent to offer his medical opinion as to cause or etiology of his skin and salivary gland cancers or the level of sun exposure he received in service, as there is no evidence of record that the Veteran has specialized medical knowledge. See Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opinion on matter requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Absent a competent medical opinion linking the Veteran's skin and salivary gland cancers to service, service connection must also be denied on a direct basis. ORDER Service connection for fibrous carcinoma of the left forehead is denied. Service connection for epidural carcinoma of the right neck (salivary gland cancer), status-post paratidectomy and right radical neck dissection is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs