Citation Nr: 1314869 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 11-22 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for malignant melanoma, right lower back, to include as due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served as a member of the United States Army, with active service from March 1945 to December 1946. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2010 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In April 2013, subsequent to the August 2011 statement of the case, the appellant submitted a statement without a waiver of RO consideration. However, this is a reiteration of prior arguments presented during the course of the appeal and the information contained in the statement is essentially duplicative of evidence previously considered by the RO. Thus, a remand is not necessary. See 38 C.F.R. §§ 19.31 , 19.37, 20.800, 20.1304(c). FINDINGS OF FACT 1. The Veteran was exposed to ionizing radiation as a result of his in-service duties in Japan at the conclusion of World War II. 2. The Veteran has been diagnosed with malignant melanoma, a radiogenic disease. 3. The Veteran's malignant melanoma first manifested many years after service and is unrelated to any incident of service, including exposure to ionizing radiation. CONCLUSION OF LAW Malignant melanoma was not incurred in or aggravated by the Veteran's active service, and is not proximately due to or the result of exposure to ionizing radiation. 38 U.S.C.A. §§ 1110; 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom., Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this case, the Board finds that VCAA letters dated in June 2009, October 2009, and January 2010 fully satisfied the notice requirements of the VCAA, and that the Veteran's claim was initially adjudicated in July 2010. Thus, the notice letters were timely. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA medical records are in the file. The Board notes that the claims file contains June 2009 and January 2010 responses from the Personnel Information Exchange System, which indicated that the Veteran's service records were not available as they were associated with a fire that occurred at the National Personnel Records Center on July, 12, 1973, and may have been destroyed. VA has a heightened duty to assist in these cases. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In a January 2010 letter, the RO informed the Veteran that VA had not been able to locate his service records, and the RO requested that the Veteran submit any copies he had of those records. The Veteran did not respond to the January 2010 letter. The Board finds no indication that other available, outstanding service treatment records exist. Therefore, the Board concludes that all records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). As the Board will discuss in detail in its analysis below, VA has obtained a medical opinion regarding the etiology of the Veteran's malignant melanoma. Review of the reports show that the medical specialist reviewed the Veteran's medical and radiation history, and rendered appropriate opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that the medical opinion is adequate for purposes of rendering a decision in the instant appeal. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Law and Regulations When seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Service connection may be granted on a presumptive basis for certain chronic diseases, including malignant tumors, if they are shown to be manifest to a degree of 10 percent or more within one year following the veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, there are specific diseases that may be presumptively service connected if manifest in a radiation-exposed veteran. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). A radiation-exposed veteran is one who participated in a radiation-risk activity. A radiation-risk activity includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Second, other radiogenic diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2), found five years or more after service 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 that regulation include skin cancer. 38 C.F.R. § 3.311(b)(2). Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that 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; (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 there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). Third, 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 burden of tracing causation to a condition or event during service. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In this case, there is no doubt that the Veteran has malignant melanoma, which was initially diagnosed in November 1986. The Veteran contends that his malignant melanoma is the result of exposure to ionizing radiation. The first question before the Board is thus whether the Veteran meets the criteria for qualification as a "radiation-exposed" veteran. A May 2010 letter from the Defense Threat Reduction Agency (DTRA) reflects that the Veteran, as a confirmed member of the American occupation forces in Japan following World War II, was present in the Department of Veterans Affairs-defined Nagasaki area from November 10 to 11, 1945. As outlined in 38 C.F.R. § 3.309(d)(3), participating in the occupation of Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946 is considered a "radiation-risk activity." As the Veteran has been determined to have participated in a "radiation-risk activity," he meets the criteria for qualification as a "radiation-exposed" Veteran. As a "radiation-exposed" Veteran, the level of his radiation exposure need not be documented, provided that he has been diagnosed with a disease enumerated in 38 C.F.R. § 3.309(d) or other radiogenic disease. Skin cancer is listed under 38 C.F.R. § 3.311(b)(2) as a radiogenic disease. It is not, however, among the types of diseases listed at 38 C.F.R. § 3.309(d)(2) subject to presumptive service connection in radiation-exposed Veterans. Thus, in order to be entitled to service connection, the Veteran's malignant melanoma must be determined by the VA Under Secretary of Health to be related to the Veteran's ionizing radiation exposure while in service, or otherwise be linked medically to ionizing radiation exposure while in service. The relevant evidence includes the May 2010 letter from the DTRA stating that the Veteran was exposed to ionizing radiation. The DTRA provided a history of the Veteran's exposure to ionizing radiation. According to the DTRA's report, the radiation doses, in units of Röntgen equivalent in man (or mammal) (rem) the Veteran received during his service in Japan were no more than: Total external gamma dose: 0.004 rem Upper bound total external gamma dose: 0.014 rem Total skin dose beta plus gamma (lower back): 0.067 rem, including the contribution from the external gamma dose component Upper bound total skin dose beta plus gamma (lower back): 0.201 rem The DTRA letter specifies that none of the troops participating in the occupation of Japan received a dose from neutron radiation. In a June 2010 Memorandum, the Director of Radiation and Physical Exposures, a medical doctor (MD) with a Masters in Public Health (M.P.H.) noted the above findings and used the Interactive Radio epidemiological Program of the National Institute for Occupational Safety and Health to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's skin cancer. The program calculated a 99th percentile value for the probability of causation of 3.09 percent. Based on these results, the physician found it was unlikely that the Veteran's malignant melanoma could be attributed to radiation exposure while in service. In a June 2010 letter, the Director of Compensation and Pension Service cited to the above DTRA findings and also to the calculations by the Interactive Radio epidemiological Program of the National Institute for Occupational Safety and Health estimating the likelihood that exposure to ionizing radiation was responsible for the Veteran's multiple melanoma. The Director also noted that the Veteran was 18 years old when he was exposed to ionizing radiation and skin cancer manifested 41 years after exposure to ionizing radiation. Additionally, the Director observed that the record reflected that the Veteran was a white male, standing at 71 inches tall, and weighing 168 pounds. He noted that post-service the Veteran worked for 37 years in a chemical factory and did not have exposure to ionizing radiation. It was also indicated that the Veteran did not smoke. Additionally, the Veteran's mother died of a brain tumor. The letter also reflects that the Veteran reported two beach trips earlier in his life with two episodes of significant sun burning. Due to these factors, as well as review of the evidence in its entirety, the Director determined that there was no reasonable possibility that the Veteran's skin cancer was the result of his radiation exposure during service. The Board finds the June 2010 opinion from the Director of Radiation and Physical Exposures is probative as it is definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, this opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board notes that in January 2009, the Veteran told a VA pulmonologist that he had spent seven days at Hiroshima and seven days at Nagasaki while on active duty. The pulmonologist noted the Veteran's history of melanoma. After opining that the Veteran was definitely exposed to ionizing radiation, he stated that the Veteran's melanoma may be causally related to his ionizing radiation exposure at Hiroshima and Nagasaki, and thus his melanoma may be service related. However, the Court has held that the use of equivocal language such as "could" or "may have" makes a statement by an examiner speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not: language by a physician is too speculative). As the aforementioned examiner expressed his opinion in terms of speculative language (i.e., "may be,"), the Board finds that his opinion is speculative in nature. The January 2009 VA pulmonologist opinion is outweighed by the June 2010 medical opinion discussed above, as the June 2010 opinion was not speculative and was based on actual dose estimates. Because the most probative opinion obtained by the VA determined that the Veteran's skin cancer was not likely related to ionizing radiation exposure while in service, in order for service connection to be warranted in this case the evidence must show that his skin cancer is directly related to his active military service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To date, however, no other medical professional has attributed the Veteran's skin cancer to active military service. Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, there is no competent evidence establishing a medical nexus between military service and the Veteran's skin cancer. Furthermore, skin cancer did not manifest in service or until four decades after service discharge. In view of the lengthy period without treatment, there is no evidence of continuity of symptomatology, and this weighs against the claim. Therefore, service connection on a direct basis likewise fails. The Board acknowledges that it must fully consider the lay assertions of record. In this regard, a layperson is competent to report on the onset of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, No. 09-3525 (U.S. Vet. App. June 15, 2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. Competency of evidence differs, however, from the weight and credibility assigned to evidence. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination that addresses the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify as to his observations and lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See supra Jandreau at 1376-77; Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, the question of the etiology of the Veteran's skin cancer is a complex question unlike testimony as to the presence of a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of his skin cancer and its relationship to radiation in service, as such is not readily subject to lay observation and requires appropriate medical expertise. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render an opinion regarding radiological or medical issues regarding the etiology of his skin cancer. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, in the present case, the Board gives more credence and weight to the June 2010 medical opinion than by the Veteran's lay assertions. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for skin cancer, to include as due to exposure to ionizing radiation, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs