Citation Nr: 1002811	
Decision Date: 01/19/10    Archive Date: 02/01/10

DOCKET NO.  05-01 028	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Albuquerque, New Mexico


THE ISSUE

Entitlement to service connection for recurrent melanoma of 
the right shoulder with various areas of actinic keratosis 
and non-melanoma skin cancer, to include as a result of 
exposure to ionizing radiation.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Heather M. Gogola, Associate Counsel





INTRODUCTION

The veteran served on active duty from May 1954 to July 1956.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from a rating decision by the Department of 
Veterans Affairs (VA) Regional Office (RO) in Seattle, 
Washington.  Subsequently the veteran's claims file was 
transferred to the RO in Albuquerque, New Mexico.

The Board notes that the veteran's original claim was 
previously remanded to the RO via the Appeals Management 
Center (AMC) for further development per a Board decisions 
dated May 2007 and March 2009.

Please note this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2009).  38 U.S.C.A. 
§ 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The appellant is not a radiation exposed veteran, and 
there is no objective evidence establishing actual in-service 
exposure to ionizing radiation.

2.  The veteran's skin disorder, manifested as recurrent 
melanoma of the right shoulder with various areas of actinic 
keratosis and non-melanoma skin cancer, was first diagnosed 
years following his service discharge, and there is no 
competent medical evidence linking the disorder to his active 
service.


CONCLUSION OF LAW

Recurrent melanoma of the right shoulder with various areas 
of actinic keratosis and non-melanoma skin cancer was not 
incurred or aggravated in service.  38 U.S.C.A. §§ 1110, 
1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. 
§§ 3.102, 3.159, 3.303, 3.311 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

VA's duties to notify and assist claimants in substantiating 
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326(a).  See also 73 Fed. Reg. 23,353-
23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 
3.159).  Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical evidence or lay evidence that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 
Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 
3.159(b)(1), proper notice must inform the claimant of any 
information and evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will seek to provide; 
and (3) that the claimant is expected to provide.  Notice 
should be sent prior to the appealed rating decision or, if 
sent after the rating decision, before a readjudication of 
the appeal.  A Supplemental Statement of the Case, when 
issued following a notice letter, satisfies the due process 
and notification requirements for an adjudicative decision 
for these purposes.  See Mayfield v. Nicholson, 444 F.3d 1328 
(Fed. Cir. 2006).

In this case, notice fulfilling the requirements of 38 C.F.R. 
§ 3.159(b) was furnished to the Veteran in March 2004, prior 
to the date of the issuance of the appealed rating decision.

The Board further notes that, in a letter dated April 2008, 
the Veteran was notified that a disability rating and an 
effective date for the award of benefits are assigned in 
cases where service connection is warranted.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VA has also fulfilled its duty to assist in obtaining the 
identified and available evidence needed to substantiate the 
claim adjudicated in this decision.  The RO has either 
obtained, or made sufficient efforts to obtain, records 
corresponding to all treatment for the claimed disorders 
described by the Veteran.  See Barr v. Nicholson, 21 Vet. 
App. 303 (2007).

In summary, the duties imposed by the VCAA have been 
considered and satisfied.  Through various notices of the RO, 
the Veteran has been notified and made aware of the evidence 
needed to substantiate this claim, the avenues through which 
he might obtain such evidence, and the allocation of 
responsibilities between himself and VA in obtaining such 
evidence.  There is no additional notice that should be 
provided, nor is there any indication that there is 
additional existing evidence to obtain or development 
required to create any additional evidence to be considered 
in connection with the claim.  Consequently, any error in the 
sequence of events or content of the notice is not shown to 
prejudice the Veteran or to have any effect on the appeal.  
Any such error is deemed harmless and does not preclude 
appellate consideration of the matter herein decided, at this 
juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 
(2006) (rejecting the argument that the Board lacks authority 
to consider harmless error).  See also ATD Corp. v. Lydall, 
Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).


Background

The veteran contends that his skin disorder, including 
melanoma and non-melanoma skin cancer, is related to his 
active service.  Specifically the veteran states that he was 
stationed at Nellis Air Force Base, during the time atomic 
bomb testing was being carried out.  The veteran stated that 
his MOS as an aircraft mechanic required him to service 
planes that had been flown through the mushroom clouds.  He 
asserts that his exposure to the radiation and dust on the 
planes was a strong contributing factor to his history of 
skin cancer.  

Service treatment records are silent to any treatment of any 
skin cancer during active service.  A report of medical 
history and examination upon entrance into service noted 
normal skin and lymphatic system.  A September 1954 operation 
report indicated that he veteran had a sebaceous cyst removed 
from his left ear.  The veteran's July 1956 report of medical 
history also reflected that the veteran had a cyst removed 
from his left ear.  The veteran's separation examination 
dated July 1956 indicated that the veteran had a cyst removed 
from the left cheek, with no complications, no sequalae.  
Otherwise, the examination indicated that the veteran had 
normal skin and lymphatic system.  

Service personnel records show that the veteran was stationed 
at Nellis Air Force Base from January 1955 to July 1956.  
During that time, the veteran served as an aircraft mechanic.

Post service treatment records reflect treatment for skin 
disorders, including skin cancer and actinic karatosis. 

A 1964 dermatology examination found no objective or 
subjective evidence of skin disease.  However, a December 
1966 VA examination revealed senile keratosis involving the 
back of the neck and noted senile elastosis of the neck.  A 
diagnosis of actinic keratoses with actinic damage to the 
surrounding skin was provided.  The examiner noted that the 
veteran had a ruddy complexion and appeared to be 
photosensitive.  A July 1967 operative report indicated that 
the veteran had senile keratoses removed from the posterior 
aspects of the neck.  

Unidentified records dated 1973 to 1991 reflect treatment for 
multiple actinic karatoses, chromodermatitis, as well as 
other skin conditions.

Private treatment records from Lovelace medical clinic dated 
1991 to 2004 reflected treatment for skin cancer and 
melanoma.  A February 2004 treatment record indicated that 
the veteran had received treatment through the Lovelace 
clinic since 1991.  In 1999, the veteran had a melanoma 
removed from the right shoulder, with a recurrence in 2000.  
The veteran also received treatment for a number of non-
melanoma skin cancers and numerous actinic keratoses.  The 
physician indicated that the veteran was of Irish-Scottish 
descent and worked as a builder with lots of outdoor sun 
exposure both in the military and later on.  The physician 
noted that the veteran was fair skinned with a history of 
recurrent melanoma, as well as non-melanoma skin cancer.  
Examination revealed no evidence of suspicious lesions or 
melanoma.  However, multiple actinic keratoses were removed 
with liquid nitrogen.

A February 2004 medical opinion from J.G., M.D., indicated 
that the veteran had a history of considerable sun exposure 
during his military service, as well as a history of 
recurrent melanoma.  The physician opined that it "may very 
well be that his melanoma is service-connected."  

VA treatment records dated November 2004 to February 2008 
reflect continued treatment for melanoma and non-melanoma 
skin cancers as well as actinic keratoses.  

The veteran was afforded a VA examination in September 2008.  
The examiner noted that the veteran's relevant medical 
history showed that the veteran first had a malignant 
melanoma removed from his right shoulder in 1999.  A sentinel 
lymph node biopsy at the time was negative.  The examiner 
noted that during his active service, the veteran was 
stationed in Nevada and reported that he was involved in 
providing maintenance on planes that had flown through 
nuclear clouds.  He also often worked outside without 
sunscreen or a hat.  After service, he reported that he 
worked as a mechanic.  Examination revealed a well healed 
scar on the right shoulder with no nodularity or 
pigmentation.  There was no auxiliary, cervical or inguinal 
lymphadenopathy.  On the scalp, forehead, ears and dorsal 
hands were scattered, adherent, scaly macules.  The examiner 
stated that he felt it would be purely speculation to find 
that the veteran's melanoma was due directly to radiation 
exposure or ultraviolet exposure during his military service.  
The examiner reasoned that sun exposure linked to melanoma 
was often in short, intense bursts of radiation commonly 
occurring during childhood.  Thus, the examiner stated it 
would be impossible to state that there was evidence of a 
direct causal relationship to the veteran's military service







Legal Criteria

Service connection may be established where the evidence 
demonstrates that an injury or disease resulting in 
disability was contracted in the line of duty coincident with 
military service, or if preexisting such service, was 
aggravated therein.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§ 3.303.  

Establishing service connection generally requires (1) 
medical evidence of a current disability; (2) medical or, in 
certain circumstances, lay evidence of in-service incurrence 
or aggravation of a disease or injury; and (3) medical 
evidence of a nexus between the claimed in-service disease or 
injury and the present disability.  Shedden v. Principi, 381 
F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. 
App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 
(Fed.Cir.1996) (table); see also Shedden v. Principi, 381 
F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. 
App. 247, 253 (1999); 38 C.F.R. § 3.303. 

Under 38 C.F.R. § 3.303(b), an alternative method of 
establishing the second and third Shedden/Caluza element is 
through a demonstration of continuity of symptomatology.  
Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 
Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 
Vet. App. 296, 302 (1999).  Continuity of symptomatology may 
be established if a claimant can demonstrate (1) that a 
condition was "noted" during service; (2) evidence of post-
service continuity of the same symptomatology; and (3) 
medical or, in certain circumstances, lay evidence of a nexus 
between the present disability and the post-service 
symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 
12 Vet. App. at 253 (lay evidence of in-service incurrence 
sufficient in some circumstances for purposes of establishing 
service connection); 38 C.F.R. § 3.303(b).

Lay persons are not competent to opine as to medical etiology 
or render medical opinions.  Barr v. Nicholson; see Grover v. 
West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 
Vet. App. 492, 494 (1992).  Lay testimony is competent, 
however, to establish the presence of observable 
symptomatology and "may provide sufficient support for a 
claim of service connection."  Layno v. Brown, 6 Vet. App. 
465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 
405 (1995) (lay person competent to testify to pain and 
visible flatness of his feet); Espiritu, 2 Vet. App. at 494-
95 (lay person may provide eyewitness account of medical 
symptoms).  

"Symptoms, not treatment, are the essence of any evidence of 
continuity of symptomatology."  Savage, 10 Vet. App. at 496 
(citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once 
evidence is determined to be competent, the Board must 
determine whether such evidence is also credible.  See Layno, 
supra (distinguishing between competency ("a legal concept 
determining whether testimony may be heard and considered") 
and credibility ("a factual determination going to the 
probative value of the evidence to be made after the evidence 
has been admitted").

Additionally, the Board notes that the veteran has claimed 
his skin cancer was caused by exposure to ionizing radiation.  
Where a veteran served 90 days or more during a period of war 
or after December 31, 1946, and malignant tumors become 
manifest to a degree of 10 percent within 1 year from date of 
termination of such service, such disease shall be presumed 
to have been incurred in service, even though there is no 
evidence of such disease during the period of service.  This 
presumption is rebuttable by affirmative evidence to the 
contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 
3.307, 3.309.

Service connection for disability that is claimed to be 
attributable to exposure to ionizing radiation during service 
can be demonstrated by three different methods.  See Ramey v. 
Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. 
Gober, 120 F. 3rd 1239 (Fed. Cir. 1997), cert. denied, 118 S. 
Ct. 1171 (1998).  See also Davis v. Brown, 10 Vet. App. 209, 
211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997).

First, if a veteran exposed to radiation during active duty 
later develops one of the diseases listed in 38 C.F.R. § 
3.309(d)(2), a rebuttable presumption of service connection 
arises.  See 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 
3.309. These diseases are ones in which the VA Secretary has 
determined that a positive association with radiation 
exposure exists.  Basal cell carcinoma is not among these 
diseases.  See 38 C.F.R. § 3.309(d)(2)(i-xxi).

Second, service connection may be established if a radiation-
exposed veteran develops a "radiogenic disease" (one that 
may be induced by ionizing radiation, either listed at 38 
C.F.R. § 3.311(b)(2) or established by competent scientific 
or medical evidence to be radiogenic disease), if the VA 
Undersecretary for Benefits determines that a relationship in 
fact exists between the disease and the Veteran's exposure in 
service.  Skin cancer is among these listed diseases (see 38 
C.F.R. § 3.311(b)(2)(vii)).

Third, service connection may be established by competent 
evidence establishing the existence of a medical nexus 
between the claimed condition and exposure to ionizing 
radiation during active service.  See Combee v. Brown, 34 F. 
3d 1039 (Fed. Cir. 1994).  

The Board notes that the three alternative methods for 
establishing service connection all share a common threshold: 
that the claimant has, in fact, been shown to have been 
exposed to ionizing radiation. A "radiation-exposed 
veteran" is defined by 38 C.F.R. § 3.309(d)(3)(i) as a 
veteran who, while serving on active duty or on active duty 
for training or inactive duty training, participated in a 
radiation-risk activity.

"Radiation-risk activity" includes on-site participation in 
a test involving the atmospheric detonation of a nuclear 
device.  38 C.F.R. § 3.309(d)(3)(ii)(A).  "Onsite 
participation" means, among other things, during the 
official operational period of an atmospheric nuclear test, 
performance of official military duties in connection with 
ships, aircraft or other equipment used in direct support of 
the nuclear test. 38 C.F.R. § 3.309(d)(3)(iv)(A).  "Onsite 
participation" also means, during the six month period 
following the official operational period of an atmospheric 
nuclear test, presence at the test site or other test staging 
area to perform official military duties in connection with 
completion of projects related to the nuclear test including 
decontamination of equipment used during the nuclear test.  
38 C.F.R. § 3.309(d)(3)(iv)(B).  For tests conducted by the 
United States, the term "operational period" includes the 
period from April 25, 1962 through December 31, 1962 for 
Operation DOMINIC I.  38 C.F.R. § 3.309(d)(3)(v)(R).  

Analysis

The Board notes that the veteran submitted articles regarding 
the nuclear testing that occurred at the Nevada test site.  
The articles indicated that atomic bombs were detonated, and 
that Nellis Air Force Base was adjacent to the test site.  
One internet article indicated that the atomic testing in the 
1950s resulted in devastating health effects to the 
"downwinders" that were northeast of the site in Nevada and 
Utah.  

The Board notes that the three alternative methods for 
establishing service connection all share a common threshold: 
that the claimant has, in fact, been shown to have been 
exposed to ionizing radiation. A "radiation-exposed 
veteran" is defined by 38 C.F.R. § 3.309(d)(3)(i) as a 
veteran who, while serving on active duty or on active duty 
for training or inactive duty training, participated in a 
radiation-risk activity.

"Radiation-risk activity" includes on-site participation in 
a test involving the atmospheric detonation of a nuclear 
device.  38 C.F.R. § 3.309(d)(3)(ii)(A).  "Onsite 
participation" means, among other things, during the 
official operational period of an atmospheric nuclear test, 
performance of official military duties in connection with 
ships, aircraft or other equipment used in direct support of 
the nuclear test. 38 C.F.R. § 3.309(d)(3)(iv)(A).  "Onsite 
participation" also means, during the six month period 
following the official operational period of an atmospheric 
nuclear test, presence at the test site or other test staging 
area to perform official military duties in connection with 
completion of projects related to the nuclear test including 
decontamination of equipment used during the nuclear test.  
38 C.F.R. § 3.309(d)(3)(iv)(B).  

Here, the Veteran served as an aircraft mechanic at Nellis 
Air Force Base during the time nuclear testing was conducted 
in Nevada. It is not shown, however, that his duties included 
maintenance of aircraft or other equipment used in direct 
support of the nuclear testing as required by 38 C.F.R. 
§ 3.309(d)(3)(iv)(A).  His recollection of servicing aircraft 
flown by Korean pilots over the test areas is simply not 
supported by official or other corrobative evidence. 
Consequently, he may not be considered to be a "radiation-
exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3)(i)

While service connection for skin cancer based on exposure to 
ionizing radiation is not warranted, service connection may 
be established by competent evidence establishing the 
existence of a medical nexus between the claimed condition 
and service.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 
1994).  

Based on the evidence listed above, the Board finds that 
direct service connection is not warranted.  The veteran's 
service medical records reflect that the veteran had cysts 
removed during his active service, but were silent to any 
treatment or diagnosis of any skin condition, including skin 
cancer or severe sun damage.  Moreover, a 1964 VA examination 
indicated no objective or subjective evidence of a skin 
disorder.  The first documentation of a skin disorder was in 
December 1966, nearly 10 years after the veteran's separation 
from active service, when the veteran was diagnosed with 
senile keratosis involving the back of the neck.  The 
veteran's first documented treatment and diagnosis of 
melanoma was in 1999, when a melanoma was removed from the 
veteran's right shoulder.  

The Board notes that the veteran's private physicians noted 
that his skin cancers and actinic keratoses were likely the 
result of sun damage.  The Board also observes that the 
veteran's private physicians have noted that the veteran is 
fair-skinned and photosensitive.  Additionally, in his 
February 2004 opinion, Dr. J.G., indicated that the veteran 
had a history of considerable sun exposure during his 
military service, as well as a history of recurrent melanoma.  
The physician opined that it "may very well be that his 
melanoma is service-connected."  However, a February 2004 
treatment record indicated that the veteran reported lots of 
outdoor sun exposure both during and after his military 
service.

While the conclusions of a physician are medical conclusions 
that the Board cannot ignore or disregard, see Willis v. 
Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess 
medical evidence and is not compelled to accept a physician's 
opinion.  See Wilson v. Derwinski, 2 Vet. App. 614 (1992).  
Thus, although on initial review the statements of the 
veteran's private physicians appear to support the veteran's 
claim, a close reading shows that they do not.  The opinion 
is speculative and, at most, does little more than propose 
that it is possible the veteran's current skin disorder, 
including skin cancer and actinic keratosis is related to sun 
exposure during active service.  The physician based his 
opinion on contemporaneous medical evidence showing that the 
veteran's current skin disorders were the result of sun 
exposure, but did not base their opinion on a review of the 
veteran's service records, nor did they take into 
consideration the veteran's post-service sun exposure.  

On the contrary, the September 2008 VA examiner indicated 
that the veteran was stationed for two years during active 
service in Nevada, and after discharge moved to Albuquerque, 
New Mexico where he worked as a mechanic.  The examiner, 
after review of the claims file, stated that he felt it would 
be purely speculation to find that the veteran's melanoma was 
due directly to radiation exposure or to ultraviolet exposure 
during his military service.  He provided the rationale that 
sun exposure linked to melanoma was often in short, intense 
bursts commonly occurring during childhood.  Thus, 
speculative nature of the private physician's opinions of 
record is not legally sufficient to establish service 
connection.  See Tirpak v. Derwinski, 2 Vet. App. 609, 611 
(1992).  As such, they fall short of the level of certainty 
necessary for the Board to service connect the veteran for 
skin cancer and actinic keratoses.

As there is not an approximate balance of positive and 
negative evidence regarding the merits of the appellant's 
claims that would give rise to a reasonable doubt in favor of 
the appellant, the benefit of the doubt rule as to these 
issues is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert 
v. Derwinski, 1 Vet. App. 49, 54-56 (1990).







ORDER

Service connection for recurrent melanoma of the right 
shoulder with various areas of actinic keratosis and non-
melanoma skin cancer is denied.



____________________________________________
WAYNE M. BRAEUER 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs