Citation Nr: 1315030 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 11-05 577A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a lung disability. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for keratoses on the face, scalp, and arms. 3. Entitlement to service connection for chronic lymphocytic leukemia / small lymphocytic lymphoma. 4. Entitlement to an initial compensable evaluation for melanoma of the right ear. REPRESENTATION Appellant represented by: Kenneth H. Dojaquez, Attorney at Law ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from September 1952 to September 1954. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In response to the January 2010 decision, the Veteran submitted a notice of disagreement in July 2010. After a statement of the case was issued in December 2010, the Veteran passed away in January 2011. Through her representative, the surviving spouse submitted a substantive appeal (VA Form 9), which was accepted by the RO as timely in March 2011. At that time, the surviving spouse requested to be substituted for the Veteran as the appellant to continue the appeal and process the claims to completion. See 38 U.S.C.A. § 5121A (West Supp. 2012). In April 2013, the RO sent a letter to the appellant indicating that the appeal would be processed to completion. Additionally, in a December 2012 statement, the Veteran's representative acknowledged that the substitution had occurred. In light of this information, the Board will proceed with consideration of the appeal with the surviving spouse as the substituted appellant. In December 2012, the Veteran's representative also submitted additional evidence to the Board. The Veteran's representative waived review of the newly submitted evidence by the RO. See 38 C.F.R. § 20.1304(c) (2012). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal of a reopened claim of entitlement to service connection for a lung disability is remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. In July 2005, the RO denied the Veteran's original claims of entitlement to service connection for a lung disability and keratoses on the face, scalp and arms. Although provided notice of this rating decision, the Veteran did not perfect an appeal thereof. 2. Evidence received since the July 2005 rating decision is new and material, as the evidence is not cumulative and redundant, and it raises a reasonable possibility of substantiating the claims of service connection for a lung disability and keratoses on the face, scalp and arms. 3. The Veteran's chronic lymphocytic leukemia / small lymphocytic lymphoma cannot be reasonably disassociated with his exposure to ionizing radiation during active military service. 4. The Veteran had skin cancer of the face and scalp that was causally related to his service-connected chronic lymphocytic leukemia / small lymphocytic lymphoma. 5. In December 2012, prior to the promulgation of a Board decision, the appellant withdrew her appeal as to the issue of entitlement to an initial compensable evaluation for melanoma of the right ear. CONCLUSIONS OF LAW 1. The July 2005 decision denying the claims of entitlement to service connection for a lung disability and keratoses on the face, scalp and arms is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). 2. Evidence submitted to reopen the claim of entitlement to service connection for a lung disability is new and material, and therefore, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Evidence submitted to reopen the claim of entitlement to service connection for keratoses on the face, scalp and arms is new and material, and therefore, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. Chronic lymphocytic leukemia / small lymphocytic lymphoma was incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 5. Skin cancer of the face and scalp was proximately due to or the result of service-connected chronic lymphocytic leukemia / small lymphocytic lymphoma. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). 6. The criteria for withdrawal of the substantive appeal by the appellant for the issue of entitlement to an initial compensable evaluation for melanoma of the right ear have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Without deciding whether the notice and development requirements have been satisfied, the Board is not precluded from adjudicating the appellant's claims, because the Board is granting service connection for the claims decided herein and reopening the lung disability claim. As such, this decision poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49747 (1992). I. Previously Denied Claims Historically, in October 2004, the Veteran submitted original claims of entitlement to service connection for "lung deterioration" and keratoses on the face, scalp and arms that were denied in a July 2005 rating decision. Although he received notice of this rating decision and notice of his appellate rights, he did not appeal the decision. Additionally, new and material evidence was not received prior to the expiration of the appeal period. See 38 C.F.R. § 3.156(b). As such, the July 2005 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). In August 2008, the Veteran submitted a claim to reopen the issues of entitlement to service connection for a lung disability and keratoses on the faces, scalp and arms. He characterized the lung disability claim as removal of half of the right lung and residuals of removal of right lung. After these claims were denied in the January 2010 rating decision, the appellant eventually perfected an appeal after the Veteran's death. These claims have been certified to the Board for appellate review. As to the characterization of the claimed lung disability, claims based upon distinctly diagnosed diseases or injuries cannot be considered the same for purposes of addressing the reopening of a previously denied claim. Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008). This is so even if the diseases or injuries involve overlapping symptomatology. Id. In Boggs, a claim involving sensorineural hearing loss was not considered to be the same as a claim involving conductive hearing loss even though they may have overlapping symptomatology because the two types of hearing loss developed from injuries to different parts of the ear. Id. at 1332-33. In the appellant's case, although the claimed lung disability has been variously characterized as lung deterioration, removal of half of the right lung, and residuals of removal of right lung, the present claim is identical to the claim previously denied in July 2005. The Veteran contended that the "lung deterioration" had its onset in 1973 at which time the evidence shows that he had a right lobectomy. Thus, the present claim should be treated as a claim to reopen rather than an original claim of service connection, and the claimed disability is best described as a lung disability. See Boggs, 520 F.3d at 1337. Generally, although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after VA has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). Although the RO found that new and material evidence had been submitted to reopen the Veteran's claims of entitlement to service connection for a lung disability and keratoses on the face, scalp, and arms, RO decisions are not binding on the Board and, consequently, the Board must first decide whether new and material evidence has been received to reopen the Veteran's claims. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). As the July 2005 rating decision is the last final disallowance with respect to both of the claims at issue herein, the Board must review all of the evidence submitted since then to determine whether the appellant's claims of service connection for a lung disability and keratoses on the face, scalp, and arms should be reopened and re-adjudicated on a de novo basis. Evans, 9 Vet. App. at 282-83. Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Moreover, service connection may be granted for any disease diagnosed after separation, 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 may also be granted on a secondary basis for disability that is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. At the time of the July 2005 rating decision, the evidence of record included: the Veteran's DD Form 214; private treatment records, dated from January 2001 to September 2004; and an application for benefits and a statement from the Veteran. The Veteran's service treatment records were not of record as the National Personnel Records Center informed the RO in October 2004 that the records were likely destroyed in a fire. The Veteran contended that his lung disability and keratoses were related to exposure to ionizing radiation during service, specifically when he participated in Operation UPSHOT-KNOTHOLE in 1953, which entailed atmospheric nuclear weapons testing. There were no official records documenting that the Veteran was exposed to radiation during service. As to the claimed lung disability, the Veteran indicated that the onset of the problems was in 1973, but no treatment records were available from that time period. The available private treatment records did show current treatment for keratoses. In denying these two claims in the July 2005 decision, the RO acknowledged the unavailability of the Veteran's service treatment records, but determined that the evidence did not demonstrate in-service exposure to radiation. Additionally, the RO determined that the evidence did not show a nexus, or link, between the Veteran's claimed disabilities and his military service. Following the July 2005 rating decision, evidence added to the record includes: VA treatment records, dated from July 2008 to January 2009; VA examination reports, dated in June 2009; a medical opinion from VA's Director of Radiation and Physical Exposures, dated in December 2009; private treatment records and medical opinions, dated from November 2005 to November 2012; information from the Defense Threat Reduction Agency (DTRA) and the National Nuclear Security Administration (NNSA) regarding the Veteran's exposure to radiation in service; the Veteran's death certificate; a September 2006 video interview of the Veteran; and statements from the Veteran and the appellant. The new evidence from DTRA and NNSA is significant in that it confirms that the Veteran participated in Operation UPSHOT-KNOTHOLE as he contended. Additionally, it shows that he was exposed to ionizing radiation during service. This information is new and material evidence as both claims were previously denied, in part, based on a determination that the evidence did not show in-service exposure to radiation. Thus, this evidence is not cumulative or redundant of the evidence that existed at the time of the July 2005 rating decision. Additionally, as to the lung disability specifically, the new evidence contains a private medical opinion that indicates a link between the Veteran's lung disability and his military service. In a November 2012 letter, Dr. J.B., in short, gave the opinion that the Veteran more likely than not suffered from radiation pneumonitis leading to lobectomy for necrotic lung tissue after twenty years of ongoing radiation exposure from inhaled plutonium. In regard to the keratoses claim, the new evidence contains a letter from the Veteran's private treating physician, Dr. M.B., dated in December 2008. Dr. M.B. noted that the Veteran had been treated with chemotherapy for his chronic lymphocytic leukemia (CLL) and lymphoma [small lymphocytic lymphoma (SLL)]. Dr. M.B. stated that the Veteran had developed numerous skin cancers of the scalp and head since his chemotherapy treatment. Dr. M.B. gave the opinion that the Veteran's numerous skin cancers are probably secondary to immunosuppression from the chemotherapy treatment for the leukemia and lymphoma. Thus, this is new evidence that indicates a link between the Veteran's keratoses and his CLL / SLL for which he contended was linked to his in-service radiation exposure. The Board therefore finds that the evidence submitted since the July 2005 rating decision is new in that it was not previously before VA decisionmakers. Moreover, the new evidence is material because the evidence pertaining to the Veteran's in-service exposure to radiation combined with the evidence linking the claimed disabilities to service, or another disability that may be linked to service, is not cumulative and redundant, and it raises a reasonable possibility of substantiating the claims of service connection for a lung disability and keratoses. The threshold for reopening a claim is low and this new evidence clearly meets that threshold. Shade, 24 Vet. App. at 110. Accordingly, the Board concludes that the claims are reopened because new and material evidence has been submitted. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The reopened claim of service connection for keratoses is addressed on the merits in the next section and the reopened claim of service connection for a lung disability is addressed further in the remand following the decision. II. Service Connection A. Chronic Lymphocytic Leukemia / Small Lymphocytic Lymphoma The appellant asserts, as did the Veteran, that the Veteran had CLL / SLL as a result of his military service. Specifically, it is contended that the Veteran was exposed to ionizing radiation in service when he participated in atmospheric nuclear weapons testing during Operation UPSHOT-KNOTHOLE. The Veteran maintained that he developed CLL / SLL due to the exposure to radiation in service. With respect to in-service exposure to radiation, DTRA confirmed in January 2007, January 2009, and May 2009 that that the Veteran participated in Operation UPSHOT-KNOTHOLE, which was an atmospheric nuclear weapons test conducted at Nevada Test Site in 1953. In August 2006, NNSA estimated that the Veteran was exposed to 1.3 rem of whole-body gamma radiation. In May 2009, DTRA provided a dose estimate for the upper limit of the Veteran's exposure to radiation during Operation UPSHOT-KNOTHOLE as follows: external gamma dose, 16 rem; external neutron dose, .5 rem; internal committed dose to the red bone marrow (alpha), .3 rem; internal committee dose to the red bone marrow (beta plus gamma), 3 rem; total skin dose to any skin area (beta plus gamma), 550 rem. Thus, the evidence establishes that the Veteran was exposed to ionizing radiation during service. The evidence also shows the existence of the claimed disability albeit many years after service. Private treatment records note that the Veteran was initially diagnosed with CLL in 2004 with the onset of treatment in 2005. He continued to receive treatment for CLL as it recurred. The disease was also characterized as SLL. Therefore, the salient question is whether the Veteran's CLL / SLL was related to his exposure to ionizing radiation during service. A claimant may substantiate a service connection claim based on ionizing radiation in three ways. First, absent affirmative evidence to the contrary, certain diseases shall be service-connected if they become manifest in a radiation-exposed veteran even if there is no evidence the disease during the period of service. 38 U.S.C.A. § 1112(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307; 3.309(d)(1) (2012). The list of diseases includes the following: 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 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 C.F.R. § 3.309(d)(2)(i). Thus, assuming that the Veteran was a radiation-exposed veteran, CLL is not among the listed disease. In fact, CLL is specifically excluded as a type of leukemia that is a disease specific to radiation-exposed veterans. Notably, the medical evidence in the claims file tends to equate CLL to SLL, and both CLL and SLL to non-Hodgkin's lymphoma (NHL). For instance, in February 2008, Dr. M.B. stated that CLL and SLL are both considered non-Hodgkin's lymphomas according to the WHO (World Health Organization) NHL classification scheme. Additionally, the December 2009 opinion from VA's Director of Radiation and Physical Exposures, as well as the November 2012 letter from Dr. J.B., indicate that CLL and SLL are the same disease, and are both considered NHL. The appellant's representative argues that service connection should be granted on a presumptive basis under 38 C.F.R. § 3.309(d) because lymphomas (except Hodgkin's disease) are expressly listed, and CLL and SLL are bother considered NHL. This interpretation, however, would render meaningless the list's express exclusion of CLL. Consequently, service connection for CLL / SLL may not be presumed under these provisions. Although the presumptive service connection provisions regarding diseases specific to radiation-exposed veterans do not apply, the appellant's claim falls within the bounds of the procedural development of 38 C.F.R. § 3.311 (2012). Those provisions apply to claims based on exposure to ionizing radiation. In all claims in which it is established that a radiogenic disease became manifest after service, and it is contended the disease is the 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. 38 C.F.R. § 3.311(a). Radiogenic diseases include the following: all forms of leukemia except chronic lymphatic (lymphocytic) leukemia, thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2). Similar to the provisions of 38 C.F.R. § 3.309(d), CLL is explicitly excluded from the list of radiogenic diseases. Nonetheless, if a claim is based on a disease other than one of those listed, VA shall consider the claim under the provisions of this section provided that 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(d). In the present case, the appellant is contending that CLL is the result of the Veteran's exposure to ionizing radiation in service. Furthermore, in December 2008, Dr. M.B. stated that it is reasonable and likely to conclude that radiation is related to leukemia and lymphoma. Dr. M.B.'s statement constitutes some competent medical evidence that CLL is potentially a radiogenic disease-at least to the extent to make applicable the provisions of 38 C.F.R. § 3.311. Thus, the developmental procedures for claims based on exposure to ionizing radiation are to be utilized. This development was accomplished by the RO. First, as detailed previously, a dose estimate was obtained for the Veteran's exposure to ionizing radiation due to his participation in Operation UPSHOT-KNOTHOLE. See 38 C.F.R. § 3.311(a). Then, the case was referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). This regulation indicates that the Under Secretary for Benefits will make a determination as to whether it is at least as likely as not that the Veteran's claimed disability resulted from exposure to radiation in service. 38 C.F.R. § 3.311(c)(1)(i). An advisory opinion may be requested from the Under Secretary of Health. 38 C.F.R. § 3.311(c)(1). Factors to be considered in the determination include: the probable dose, the relative sensitivity of the involved tissue, the veteran's gender and pertinent family history, the veteran's age at time of exposure, the time-lapse between exposure and onset of disease, and the extent to which other factors may have contributed to the development of the disease. 38 C.F.R. § 3.311(e). The requested opinion was provided in December 2009 by Dr. C., VA's Director of Radiation and Physical Exposures. Dr. C. noted an accurate history regarding the Veteran's in-service exposure to ionizing radiation. As to the Veteran's medical history, Dr. C. noted that CLL was diagnosed in 2004. However, subsequent reports showed different diagnoses. A flow cytometry analysis undertaken in September 2007 indicated CLL / SLL. An operative report from January 2008 revealed a mesenteric and retroperitoneal tumor consistent with lymphoma. The biopsy report was consistent with SLL. A pathology report from April 2008 showed CLL / SLL. Dr. M.B., in February 2008, wrote that the Veteran's CLL / SLL is considered non-Hodgkin's lymphoma. In a September 2008 letter, Dr. M.B. stated that ionizing radiation can cause lymphoma and reference medical literature in support of his opinion. In a letter submitted in December 2008, Dr. M.B. reiterated that leukemia and lymphoma are related to radiation and the Veteran's skin cancers are probably secondary to immunosuppression from the chemotherapy treatment for the leukemia and lymphoma. Dr. C. cited to medical literature and came to the conclusion that CLL and SLL are the same disease. Dr. C. described the disease as lymphoma to give the Veteran the greatest benefit of the doubt where causation and link to service is concerned. Dr. C. noted that Dr. M.B.'s statements about radiation causation bear some truth, but he did not have access to the actual radiation doses that the Veteran was exposed to. In estimating the likelihood that exposure to ionizing radiation was responsible for the Veteran's lymphoma, Dr. C. used the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health. The exposure dose was assumed to have occurred as a single acute dose in the earliest year of exposure (1953). This assumption would increase the likelihood for causation of cancer in the IREP calculation. The program calculated a 99th percentile value for the probability of causation of 15.07 percent. The calculation is attached to the report. In view of this information, Dr. C. stated that it was "our opinion that it is unlikely that [the Veteran's] lymphoma was caused by [exposure to ionizing radiation while in military service]." Given Dr. C's opinion, service connection is not warranted for CLL / SLL under the developmental provisions of 38 C.F.R. § 3.311. Even so, the appellant is not precluded from presenting evidence that a claimed disability is due to or the result of radiation exposure on a direct basis, which is the third way to substantiate such a claim. See, e.g., Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). In addition to the opinions from Dr. M.B. and Dr. C., Dr. J.B. provided an opinion on the matter in November 2012. Dr. J.B. noted that the Veteran's claims file was reviewed. Dr. J.B. indicated that a review of scientific publications does speak to a relationship between radiation exposure and the development of CLL after a long latent period. Although none of the findings quite reach statistical significance, the studies show greater number of CLL cases in irradiated groups according to Dr. J.B. It was also suggested by Dr. J.B. that the Veteran's dose estimate was underestimated because it did not appear to take into account inhaled plutonium from the nuclear weapons test and the Veteran indicated that he did not wear a mask during the test. Dr. J.B. conceded that the Veteran's diagnosis of CLL / SLL at age 73 is not unusual; however, the aggressive course of the disease in the Veteran's case is unusual in Dr. J.B.'s 31 years of clinical experience. Dr. J.B. believed that the evidence makes it more likely than not that the Veteran's SLL diagnosed fifty years after his total body radiation exposure was a result of the exposure. Evidence suggests further that the Veteran's SLL was more aggressive than is customary due to its radiogenic origin according to Dr. J.B. In the appellant's case, there is conflicting competent medical opinion evidence regarding the complex medical question of whether the Veteran's CLL / SLL was related to his exposure to ionizing radiation during service. The opinions from Dr. M.B. and Dr. J.B. weigh in favor of the claim and the opinion from Dr. C. weighs against the claim. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board is also mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The Board may favor the opinion of one competent medical expert over that of another provided the reasons therefore are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). Dr. M.B.'s opinion is probative in that it links the development of leukemia and lymphoma to radiation exposure with citation to medical literature. The opinion is not entirely persuasive in that it addresses leukemia and lymphoma generally and not the specific diagnoses of CLL / SLL. This is an important distinction given that non-CLL leukemia and lymphoma would already be presumptively service connected under the provisions pertaining to diseases specific to radiation-exposed veterans. Also, Dr. M.B. was unable to review some of the information in the claims file. Dr. J.B.'s opinion is probative and even more persuasive that Dr. M.B.'s opinion. Dr. J.B. reviewed the claims file, cited to medical literature that indicated a link between radiation exposure and CLL specifically and not leukemia generally, noted that the Veteran's dose assessment may have been underestimated due to the inhalation of plutonium, and considered the Veteran's CLL / SLL in the context of his clinical experience, which indicated that the CLL / SLL was more aggressive than is customary due to the radiation exposure. There is little fault to find in Dr. J.B.'s opinion and the Board accords it substantial evidentiary weight. The opinion by Dr. C. is significant as it was made by an expert in the arena as Dr. C. is the Director of Radiation and Physical Exposures. The opinion was based on an accurate history of the Veteran. Additionally, Dr. C. used a statistical analysis that showed only a 15.07 percent probability that the Veteran's CLL / SLL was caused by the radiation exposure. Although this represents a low likelihood, the opinion is not altogether persuasive because Dr. C. indicated that the Veteran's disability would be described as lymphoma so as to give him the greatest benefit of the doubt. Because lymphoma is listed as a disease specific to radiation-exposed veterans, the ultimate conclusion appears to be at odds with that designation. At the very least, when these opinions are considered, reasonable doubt exists as to the question of the relationship between the Veteran's CLL / SLL and his military service. In considering the evidence of record and when resolving reasonable doubt in the appellant's favor, the Board finds that the evidence as to whether the Veteran's CLL / SLL was related to exposure to ionizing radiation during his active military service is in equipoise. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for CLL / SLL is warranted. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304; Combee, 34 F.3d at 1044-45. B. Keratoses / Skin Cancer When the Veteran submitted his claim of service connection for keratoses on the face, scalp, and arms, he contended that the claimed disability was related to his exposure to ionizing radiation in service. The evidence does not tend to support this theory of entitlement. In December 2012, the appellant's representative instead asserted that service connection is warranted on a secondary basis. As noted previously, in addition to service connection in a direct basis, service connection may also be granted on a secondary basis for disability that is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. Dr. M.B.'s December 2008 letter is the most probative evidence for this claim. Dr. M.B. noted that he had treated the Veteran with chemotherapy for CLL / SLL since 2006 and that the Veteran had developed skin cancers of the scalp and head since his chemotherapy treatment. Dr. M.B. gave the opinion that the Veteran's numerous skin cancers are probably secondary to immunosuppression from the chemotherapy treatment for leukemia and lymphoma. Dr. M.B.'s opinion is persuasive as it includes an explanation of the probable link between the Veteran's skin cancer of the scalp and head, and his treatment for CLL / SLL. Dr. M.B. had the most insight regarding the Veteran's development of skin cancer from chemotherapy treatment as Dr. M.B. was the treating physician. The opinion is not contradicted in the record and the Board accords it sufficient evidentiary weight to substantiate the claim. In consideration of the evidence of record, the Board finds that the Veteran's skin cancer of the head and face, which he claimed as keratoses, was proximately due to or a result of his CLL / SLL. As the Board has granted service connection for CLL / SLL in this decision, it follows that the skin cancer of the head and face is secondary to a service-connected disability. See 38 C.F.R. § 3.310(a). Accordingly, the appellant's claim is granted on this basis. III. Withdrawn Claim A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204(a). In December 2012, the Veteran's representative submitted a statement wherein it was indicated that the appellant desires to withdraw her appeal as to the issue of entitlement to an initial compensable evaluation for melanoma of the right ear. As a result, no allegation of error of fact or law remains before the Board for consideration with regard this issue. As such, the Board finds that the appellant has withdrawn her appeal and, accordingly, the Board does not have jurisdiction to review the appeal. Thus, the issue of entitlement to an initial compensable evaluation for melanoma of the right ear is dismissed. 38 U.S.C.A. § 7105(d)(5). ORDER New and material evidence has been presented to reopen a claim of entitlement to service connection for a lung disability; the appeal of this issue is granted to this limited extent. New and material evidence has been presented to reopen a claim of entitlement to service connection for keratoses on the face, scalp, and arms. Service connection for chronic lymphocytic leukemia / small lymphocytic lymphoma is granted. Service connection for skin cancer of the face and scalp, as a disability associated with service-connected chronic lymphocytic leukemia / small lymphocytic lymphoma, is granted. The appeal of the issue of entitlement to an initial compensable evaluation for melanoma of the right ear is dismissed. REMAND The appellant asserts, as did the Veteran, that the Veteran had a lung disability as a result of his military service. Similar to the CLL / SLL claim, it is contended that the Veteran was exposed to ionizing radiation in service when he participated in atmospheric nuclear weapons testing during Operation UPSHOT-KNOTHOLE and that any resultant lung disability was due to the exposure to radiation in service. As detailed in the analysis of reopening the claim of service connection for a lung disability, in the November 2012 letter, Dr. J.B. gave the opinion that the Veteran more likely than not suffered from radiation pneumonitis leading to lobectomy for necrotic lung tissue after twenty years of ongoing radiation exposure from inhaled plutonium. Dr. J.B. explained that the Veteran's right lung lobectomy in 1973 is perfectly consistent with radiation pneumonitis proceeding to necrosis. Dr. J.B. submitted that the Veteran's radiation exposure was not a solitary event in 1953, but was ongoing for at least twenty years prior to the lobectomy because the radiation exposure included inhaled plutonium. Dr. J.B.'s opinion is supportive of the appellant's claim; however, the opinion is not entirely persuasive because Dr. J.B. asked the question "[i]s it possible to conceive that [the Veteran], a life-long smoker (who did not suffer from tuberculosis or any findable pathogen or neoplasm) suffered a necrotic [right lower lung] in 1973 requiring a [right lower lung] lobectomy from radiation pneumonitis?" Although the medical records from 1973 are not of record, treatment records from Dr. M.B. include a notation in the Veteran's history of "1973 Right lobectomy for apparent TB," presumably referring to tuberculosis. In May 2009, Dr. M.B. stated that the Veteran had a history of "partial pneumonectomy in 1973, possible tuberculosis, right lobectomy." Given that the Veteran may have had tuberculosis in 1973 according to Dr. M.B., the opinion provided by Dr. J.B. may not have been based on an accurate medical history. In view of this evidence, the Board finds it necessary to remand the appellant's claim for a medical opinion that addresses whether the Veteran had a lung disability that was related to his military service, including his exposure to ionizing radiation. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The records from 1973 pertaining to the Veteran's right lung lobectomy have not been yet been obtained. When he filed his original claim in October 2004, the Veteran indicated that he was treated in 1973 at Northridge Hospital in Northridge, California. A record request was made by the RO to the facility in October 2004, now called Northridge Hospital Medical Center. Although the facility responded that it had no records of admission to the hospital, the records request letter asked for records beginning only in January 2003. Perhaps the records have been destroyed given that the treatment occurred forty years ago. Nevertheless, the Board finds that the RO must make another records request to Northridge Hospital Medical Center on remand with the correct date of the treatment. Accordingly, this case is remanded for the following actions: 1. The RO must attempt to procure copies of the Veteran's treatment records pertaining to his right lung lobectomy, dated in 1973, from Northridge Hospital Medical Center, in Northridge, California. A release from the appellant must be obtained as necessary. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain these records the RO is unable to secure same, the RO must notify the appellant and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that she is ultimately responsible for providing the evidence. The appellant and her representative must then be given an opportunity to respond. 2. Thereafter, forward the claims file to an appropriate VA physician to determine whether the Veteran had a lung disability that was related to his military service. All findings must be reported in detail. The claims file and all records on Virtual VA must be made available to the physician, and the physician must specify in the opinion report that the claims file and Virtual VA records have been reviewed. The physician must specify the dates encompassed by the Virtual VA records that were reviewed. Based on a review of the evidence of record, the physician must state whether any diagnosed lung disability was related to the Veteran's active duty service, including exposure to ionizing radiation. Consideration must be given to Dr. J.B.'s November 2012 medical opinion and the Veteran's medical history recorded by Dr. M.B. pertaining to the 1973 right lung lobectomy. A complete rationale for all opinions must be provided. If the physician cannot provide the requested opinion without resorting to speculation, it must be so stated, and the physician must provide the reasons why an opinion would require speculation. The physician must indicate whether there was any further need for information necessary to make a determination. Additionally, the physician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular physician. The report prepared must be typed. 3. After the development requested has been completed, the RO must review the opinion report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. Finally, after undertaking any other development deemed appropriate, the RO must re-adjudicate the issue remaining on appeal. If a benefit sought is not granted, the RO must furnish the appellant and her representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. No action is required by the appellant until she receives further notice; however, she has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs