Citation Nr: 1321081 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 10-27 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for skin disorder, to include as due to ionizing radiation exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from July 1955 to July 1959. The appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 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 is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran has reported that he participated in Operation Hardtack, with exposure thereby to ionizing radiation resulting from open air nuclear detonations. He now contends that he has developed skin cancer as a result of that ionizing radiation exposure. Skin cancer is not among the enumerated diseases for which service connection may be granted on a presumptive basis once the Veteran is found to have participated in a radiation-risk activity in service. 38 U.S.C.A. § 1112(c) (West 2002); 38 C.F.R. § 3.309(d) (2012). However, service connection may still be established for skin cancer on a direct basis, pursuant to 38 C.F.R. § 3.303 (2012), or as a radiogenic disease based on ionizing radiation exposure under 38 C.F.R. § 3.311 (2012), although there is no presumption of service connection under 38 C.F.R. § 3.311. Rather, if a Veteran was exposed in service to ionizing radiation, and after service developed one of the diseases enumerated within 38 C.F.R. § 3.311 within a period specified, then his claim is referred to VA's Under Secretary for Benefits who must determine, based on the extent of the exposure, whether there is a reasonable possibility that the disease was incurred in service. 38 C.F.R. § 3.311. Skin cancer is considered a radiogenic disease under 38 C.F.R. § 3.311(b)(2)(vii), such that if the Veteran develops skin cancer over five years after his in-service ionizing radiation exposure, then the case is to be referred to VA's Under Secretary of Health for a determination of the likelihood of causality. 38 C.F.R. § 3.311(b)(5)(iv), (c). The Veteran's service records were sought, but National Personnel Records Center (NPRC) informed in May 2009 that the Veteran's records were fire-related, or presumed lost in an NPRC fire in July 1973. When a Veteran's records have been destroyed, the VA has an obligation to search for alternative records which support the Veteran's case. See Cuevas v. Principi, 3 Vet. App. 542 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Moreover, although there is a lack of service medical records, or for that matter, service personnel records, VA regulations provide that service connection may be shown through other evidence. Smith v. Derwinski, 2 Vet. App. 147 (1992); 38 C.F.R. § 3.303(a). This evidence may be private medical records showing treatment of the claimed disability, fellow service personnel statements, personal testimony, etc. The evidence may also be statements provided by accredited military experts. The Veteran has submitted copies of official records confirming his participation in Operation HARDTACK, as well as a copy of a photograph of a nuclear detonation for which he states he was present. 38 C.F.R. § 3.311(b)(4)(i). However, there remains in this case a question whether skin cancer is present. The Veteran was afforded a VA special registry examination in March 2006, with his history of Air Force service from 1955 to 1959 noted, including participation in Operation HARDTACK when he monitored detonations from an airplane. The Veteran reported having experienced no immediate effects of radiation exposure. He had been referred for the examination based on unusual, scaling, erythematous skin process over the hands, forearms, and scalp which he had reported had been ongoing for in excess of 40 years. The examiner expressed an opinion that the skin processes did not appear malignant, but nonetheless sought consultation with dermatology. The Veteran was noted to have undergone various treatments with topical medications, as well as use of liquid nitrogen, all without much effect. The consulting VA dermatologist in April 2006 noted actinic keratoses over the dorsal hands, forearms, distal arms, head, and neck, with some fairly, thickly scaled. However, the dermatologist felt that none of the lesions appeared to be "full-fledged carcinoma at this time." Approximately 50 of the lesions were treated by dermatology with liquid nitrogen. Because the record does not reflect whether skin cancer or carcinoma has yet been identified, remand is in order for a current examination to address whether skin cancer is now present. If skin cancer is found, then a radiation dose estimate must be obtained and the claim must then be referred for review by VA's Under Secretary for Benefits. 38 C.F.R. § 3.311. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran 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 he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After the above development is completed, the Veteran must be afforded a VA dermatological examination to determine whether any skin disorder found is related to the Veteran's military service. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent findings must be reported in detail. All indicated tests and studies must be conducted. After review of the evidence of record, the clinical examination, and with consideration of the Veteran's statements, the examiner must state whether any skin disorder found or previously diagnosed, is related to the Veteran's military service, to include as due to radiation exposure. The examiner must explain any differentiation which may be found between actinic keratoses previously identified and any skin cancer found. The examiner must consider the Veteran's assertions of actinic keratoses having been present for in excess of 40 years. The etiology of any skin cancer found must also be addressed. If the examiner cannot provide any of the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner 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 examiner. The examination report must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. If skin cancer is medically found, then a radiation dose estimate must be obtained for the Veteran's in-service participation in nuclear testing and the claim must then be referred for review by VA's Under Secretary for Benefits. 5. Thereafter, the RO must ensure that the development above has been completed in accordance with the remand orders, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claim. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).