Citation Nr: 1320138	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  05-33 163	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin



THE ISSUE

Entitlement to service connection for skin cancer, including based upon exposure to ionizing radiation.



REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney



ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from December 1944 to July 1946 and from September 1950 to June 1952.  

This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in July 2010 which granted a joint motion for remand from a January 2009 Board decision.  The appeal arose from a March 2004 rating decision by the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA).  

In November 2012, the Board vacated a May 2012 decision as to this matter upon motion by the Veteran.  The case was also remanded for additional development in November 2010 and November 2011.

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).


FINDING OF FACT

The Veteran's skin cancer is shown to have developed as a result of ionizing radiation exposure during active service.


CONCLUSION OF LAW

Skin cancer was incurred as a result of active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim 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).  The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in .

The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained.  VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4).  The available medical evidence is sufficient for an adequate determination.  

Service Connection

Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).  Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).

VA regulations provide that diseases specific to radiation-exposed veterans shall be presumed to have been incurred in service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  Skin cancer is not one of these diseases.

The term radiation-exposed veteran means either a veteran who while serving on active duty, or an individual who while a member of a reserve component of the Armed Forces during a period of active duty for training or inactive duty training, participated in a radiation-risk activity.  38 C.F.R. § 3.309(d)(3)(i).  A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) 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" is defined to mean: onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war in Japan that resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans who were in the occupation forces of Hiroshima or Nagasaki during the period August 6, 1945, to July 1, 1946; or certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio, and Oak Ridge, Tennessee; or, in certain circumstances, service on Amchitka Island, Alaska.  See 38 C.F.R. § 3.309(d)(ii). 

Even though a disease is not included on the list of presumptive diseases a nexus between the disease and service may nevertheless be established on the basis of direct service connection.  Stefl v. Nicholson, 21 Vet. App. 120 (2007).  

In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 disease or injury.  Hickson v. West, 12 Vet. App. 247 (1999).  

The pertinent evidence in this case shows the Veteran's service treatment reports do not include treatment for skin symptoms or a diagnosis of a skin condition, other than one report for a boil on his upper lip, characterized as cellulitis of the face, in January 1946.  His separation examination reports from his first and second periods of active duty, dated in July 1946, and June 1952, show that his skin was clinically evaluated as normal. 

The post-service medical evidence consists of VA and non-VA treatment reports, dated between 1987 and 2002.  This evidence shows that the Veteran was treated for skin cancer including squamous cell carcinoma of the scalp in June 1993, basal cell carcinoma near the left ear lobe in January 1997, and basal cell carcinoma near the right ear lobe in February 2000. 

The claims file includes two lay statements from W.A.M., received in March 2003, and from J.K., received in January 2005.  In these letters, the authors asserted that they served with the Veteran, that their ship was docked in Nagasaki in September 1945, that the Veteran went ashore at least once, that the Veteran was involved in water purification aboard his ship, and, in essence, that they were exposed to radiation from working near irradiated dead bodies of Japanese who were floating in the water. 

In October 2003, a radiation dose estimate was obtained from the Defense Threat Reduction Agency (DTRA).  The DTRA found the Veteran's total dose estimate was 0.2 rem (roentgen equivalent in man) and that his upper bound total dose was less than 1 rem. 

In March 2004, a medical opinion was obtained from the Chief, Public Health and Environmental Hazards Officer (CPHEHO), which included a review of the evidence on file, the Veteran's DTRA dose estimates, and reviews of the Committee on Interagency Radiation Research and Policy Coordination (CIRRPC) Science Panel Report No. 6, 1988, and interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH).  It noted that application of the IREP resulted in a 99-percentile value for the probability of causation for the squamous cell carcinoma of 0.28 percent, and a 99-percentile value for the probability of causation of the individual basal cell carcinomas of 10.68 percent.  The CPHEHO concluded that it was "unlikely that the veteran's skin cancers can be attributed to exposure to ionizing radiation in service." 

In a January 11, 2011 letter, the DTRA noted the Veteran was present in Nagasaki from September 23 to 29, 1943, and that the dose reconstruction was the basis for the worst case assumptions for the Veteran's scenario.  The total external gamma and skin doses were:

Total external gamma dose: 0.035 rem Upper bound total external gamma dose: 0.105 rem

Total skin dose beta plus gamma (scalp): 0.221 rem Upper bound total skin dose beta plus gamma (SCALP): 0.663 rem

Total skin dose beta plus gamma (ear); 0.249 rem Upper bound total skin dose beta plus gamma (eaar): 0.746 rem

It was noted that none of the troops participating in the occupation of Japan received a dose from neutron radiation. 

In a January 22, 2011 Memorandum from the Director, Radiation and Physical Exposures to the Director, Compensation and Pension Service it was stated that the IREP of the NIOSH was used to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's skin cancers.  It was noted that for purposes of calculation, the radiation doses were assumed to have been received as a single dose in the earliest year of exposure and that this would tend to increase the probability of causation as calculated by IREP.  The program was noted to calculate a 99th percentile value for the probability of causation of 0.18% for SCC and 8.19% for BCC.  The total probability of causation for both skin cancers is 8.36% according to IREP.  It was stated that the use of IREP by the Veteran's representative was not correct and use of the probability of causation calculated thereby was not warranted.  It was noted that the representative's incorrect calculation using the normal dose parameter did result in a higher PC of 23%.  It was further stated that even if the calculation was correct, 23% would not gain a favorable opinion as 50 % was the PC that must be calculated.  The clinician cautioned against inappropriate use of the IREP in the future.  It was concluded that in view of the above, it was their opinion that it is unlikely that the Veteran's squamous cell carcinoma and/or basal cell carcinoma of the skin can be attributed to radiation exposure while in the military. 

In a January 24, 2011 letter to the Director of the RO, the Director of the Compensation and Pension Service discussed the January 11, 2011 and January 22, 2011 documents and stated that as a result of the findings, and following a review of the evidence in its entirety, it was their opinion that there is no reasonable possibility that the Veteran's SCC and BCC of the skin were the result of exposure to ionizing radiation. 

A private medical opinion from S.M.M., M.D., dated May 30, 2012, noted that elevated risks of skin cancer were associated with ionizing radiation and, in essence, that a dose of 0.2 rem did not take into account the existence of "Hot Particles" which could create highly localized radiation doses large enough to induce skin cancer in some veterans.  It was the opinion of Dr. S.M.M. that it was more likely than not that the radiation as a result of the atomic bombing of Nagasaki contributed to the development of the Veteran's cutaneous malignancies.  Medical studies were cited as in support of the opinion including Naruke, Y., et. al., Genomic Instability in the Epidermis Induced by Atomic Bomb Radiation, Cancer (2009), pp. 3782-90; Nelson, K.L., and Randle, H.W., Skin Cancer in an Atomic Veteran: Cause of Coincidence?, Dermatologic Surgery (2003), 29:1100-04; Morrissey, W.M., Murphy, R.X., and Scarlato, M, Nonmelanomatous Skin Cancer Following Exposure to Atomic Radiation in the United States, Plastic Reconstructive Surgery (1998), 101:431-3; and Sisefsky, J., Debris from Tests of Nuclear Weapons: Activities Roughly Proportional to Volume are Found in Particles Examiner by Autoradiography and Microscopy, Science (1961), 133:735-40. 

A March 2013 VA medical expert opinion noted the Veteran's records showed he had squamous cell carcinoma of the scalp in June 1993, basal cell carcinoma near the left earlobe in 1997, and basal cell carcinoma of the right earlobe in 2000.  It was further noted that he was eighteen years old in September 1945 when he served aboard the USS MENARD in the port of Nagasaki, Japan, just weeks after the atomic blast and that statements indicated he had direct contact with the water surrounding the ship.  The examiner, a board certified dermatologist, noted agreement with the opinion of Dr. S.M.M. that the medical research supported the role of ionizing radiation as a causative agent of cutaneous cancer.  It was her opinion that there was at least a 50 percent probability or greater that the Veteran's exposure to ionizing radiation during active service was associated with his later development of skin cancer.  

Based upon the evidence of record, the Board finds the Veteran's skin cancer is shown to have developed as a result of ionizing radiation exposure during active service.  The Veteran's report of exposure to ionizing radiation during active service in Nagasaki is consistent with the circumstances of his service.  The opinions of the March 2013 VA medical expert and Dr. S.M.M. are found to be persuasive.  Therefore, the claim for entitlement to service connection for skin cancer must be granted.


ORDER

Entitlement to service connection for skin cancer, including based upon exposure to ionizing radiation, is granted.



____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs