Citation Nr: 1330355 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-37 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for skin cancer, to include as due to exposure to ionizing radiation. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran had active service from July 1948 to July 1949 and from September 1950 to November 1951. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which reopened the Veteran's claim and denied it on the merits. Jurisdiction of the Veteran's claims file was subsequently transferred to the Waco, Texas RO. 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). Although the RO framed the issue on appeal as entitlement to service connection for basal cell carcinoma, a review of the record indicates that the Veteran was also diagnosed as having squamous cell carcinoma. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) addressed the scope of claims generally in regard to what is claimed versus what should be addressed by VA. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons and the varying diagnoses recounted above, the Board has recharacterized the issue as stated on the title page of this decision. This will provide the most favorable review of the Veteran's claim for service connection for skin cancer in keeping with the Court's holding in Clemons. In December 2009, the Board reopened the Veteran's petition to reopen his claim of service connection for skin cancer, and remanded the underlying service connection issue for further evidentiary development. After conducting the necessary development, the RO continued the denial of the claim for entitlement to service connection for skin cancer and that issue has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran was exposed to ionizing radiation as a result of his reported service in Eta Jima, Japan, from December 1950 to February 1951. 2. Basal cell carcinoma and squamous cell carcinoma are both a type of skin cancer, a radiogenic disease. 3. Skin cancer was not manifested during the Veteran's active duty service or for many years after discharge from service, nor is skin cancer otherwise related to active duty, including exposure to ionizing radiation during service. CONCLUSION OF LAW Skin cancer was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.311 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board will address the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to render a decision has been accomplished. In this respect, through the September 2008 notice letter, the Veteran received notice of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim. The Board also finds that the above-referenced notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned notice letter. The September 2008 letter also informed the Veteran of the laws and regulations governing the assignment of disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's available service treatment records (STRs), VA treatment records, private medical records, a radiation dose estimate, and a VA advisory medical opinion. The Board is aware that the Veteran's STRs consist only of an August 1948 sick call report, and the separation examination report. When a claimant's treatment records are lost or destroyed, the VA has a "heightened" duty to assist in the development of the claims. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also 38 C.F.R. § 3.159(c). In response to an August 2004 request for the Veteran's complete STRs the National Personnel Records Center (NPRC) responded that the standard source documents were not available and any other documents had already been mailed. To help assist the Veteran in reconstructing his medical records, the NPRC provided him with a VA NA Form 13055 and asked that he complete this form to assist them in conducting another search for his records. The only information the Veteran included in the form is a notation indicating that he had never been treated for skin cancer while serving in the military. A formal finding regarding the unavailability of these records was made in January 2005 and listed the various attempts made to locate the Veteran's records. According to the memorandum, all procedures to obtain records pertaining to the Veteran had been correctly followed, all efforts to obtain the needed information had been exhausted, and any further attempts were futile. In response to a September 2008 request for the Veteran's personnel file, the NPRC responded that the Veteran's STRs were likely destroyed in a fire and the type of information sought by the RO could not be reconstructed through alternate records. A February 2011 Personnel Information Exchange System (PIES) request for additional service treatment records pertaining to the Veteran's first period of service also recovered no additional information. The Board is satisfied with the efforts as outlined by the RO and concludes that VA has done everything reasonably possible to assist the Veteran in obtaining his complete service treatment records. If there is additional available evidence to substantiate the Veteran's claim, the RO cannot obtain these records without additional and more precise information from the Veteran. Wood v. Derwinski, 1 Vet. App. 190 (1990) (in which the Court stipulated that the duty to assist is not a one way street and that an appellant must do more that passively wait for assistance when he/she has information essential to his/her claim). The Board notes that the case was remanded in December 2010 to obtain a dose estimate and, if exposure to radiation was shown, to have the claim referred to the VA Under Secretary for Benefits pursuant to 38 C.F.R. § 3.311(b). A radiation dose assessment was obtained in March 2011. An advisory medical opinion was also obtained from the VA Director, Post-9/11 Era Environmental Health Program in December 2012. The VA Director of Compensation then reviewed the file on behalf of the Veterans Benefits Administration and issued an opinion. Accordingly, the requirements of the remand were ultimately accomplished and the prior remand instructions were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument in support of his claim. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. II. Analysis Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be evidence of (1) the current disability; (2) the in-service incurrence of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a). Subsection (a) also refers to "each disabling condition . . . for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by several different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected, specific to radiation-exposed veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, when a "radiogenic disease" first becomes manifest after service, and it is contended that the disease resulted from exposure to ionizing radiation during service, various development procedures must be undertaken in order to establish whether or not the disease developed as a result of exposure to ionizing radiation. 38 C.F.R. § 3.311(a)(1). Third, even if the claimed disability is not listed as a presumptive disease under 38 C.F.R. § 3.309(d) or as a radiogenic disease under 38 C.F.R. § 3.311, service connection must still be considered under 38 C.F.R. § 3.303(d) in order to determine whether the disease diagnosed after discharge was incurred during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A "radiation-exposed veteran" is defined as either a veteran who while serving on active duty, or an individual who while serving on active duty for training or inactive duty training, participated in a radiation-risk activity. 38 C.F.R. § 3.309(d)(3)(i). "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan, or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945, through July 1, 1946. 38 C.F.R. § 3.309(d)(3)(ii). Diseases specific to radiation-exposed veterans for the purpose of presumptive service connection are the following: (i) leukemia (other than chronic lymphocytic leukemia); (ii) cancer of the thyroid; (iii) cancer of the breast; (iv) cancer of the pharynx; (v) cancer of the esophagus; (vi) cancer of the stomach; (vii) cancer of the small intestine; (viii) cancer of the pancreas; (ix) multiple myeloma; (x) lymphomas (except Hodgkin's disease); (xi) cancer of the bile ducts; (xii) cancer of the gall bladder; (xiii) primary liver cancer (except if cirrhosis or hepatitis B is indicated); (xiv) cancer of the salivary gland; (xv) cancer of the urinary tract; (xvii) cancer of the bone; (xviii) cancer of the brain; (xix) cancer of the colon; (xx) cancer of the lung; and (xxi) cancer of the ovary. 38 C.F.R. § 3.309(d)(2). The Veteran's skin cancer is not identified as a disease for which the presumption of service connection applies, and section 3.309(d) is not for application in this case. As to the second method for establishing service connection, the provisions of 38 C.F.R. § 3.311 provide for development of claims based upon a contention of radiation exposure during active service and post-service development of a radiogenic disease. The purpose of these provisions is to relieve claimants of the burden of having to submit evidence to show that their disease may have been induced by radiation. These provisions do not give rise to a presumption of service connection, but rather establish a procedure for handling claims brought by radiation exposed veterans or their survivors. See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). The governing regulation essentially states that, in all claims in which it is established that a radiogenic disease first became manifest after service, and it is contended that the disease resulted from radiation exposure, a dose assessment will be made. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims involving radiation exposure, a request will be made for any available records concerning the veteran's exposure to radiation. These records normally include but may not be limited to the veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service treatment records, and other records which may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. For purposes of 38 C.F.R. § 3.311, a "radiogenic disease" is defined as a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2)(i)-(xxiv), (b)(5)(iv). Although skin cancer is not a disease presumptively service-connected for radiation-exposed veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d)(2), it is a radiogenic disease for purposes of 38 C.F.R. § 3.311, and basal cell carcinoma and squamous cell carcinoma are both forms of skin cancer. See Dorland's Illustrated Medical Dictionary, 295 (31st ed. 2007). The Veteran contends that he was exposed to ionizing radiation while serving in, and attending, Radio Operators School in Eta Jima, Japan, from December 1950 to February 1951. He further claims to have travelled to Hiroshima during this time frame and attributes his current skin cancer to his exposure to radiation residuals present there. According to the Veteran, he was first diagnosed as having basal cell carcinoma sometime between 1977 and 1978, and the objective medical evidence necessary to substantiate this assertion is unavailable because the physician who made this diagnosis passed away, and the medical clinic where he was first diagnosed with this disorder has ceased operating. See Statement of Veteran, date stamped in November 2008; see also the completed Radiation Dose Assessment Questionnaire, dated in January 2009. Although the Veteran submitted an additional DD Form 214 reflecting prior military service from July 1948 to July 1949, he has not contended that he had exposure to ionizing radiation during this period. Moreover, the DD Form 214 associated with this period of service reflects that the Veteran did not have any foreign service during this time frame. The Veteran's available service treatment records are negative for any signs of skin problems or skin cancer. Indeed, at the November 1951 report of medical examination pursuant to the Veteran's separation from service, the clinical evaluation of his skin and lymphatic system was shown to be normal, and the medical examiner did not note any indications, signs or manifestations of skin abnormalities in the Summary of Defects and Diagnoses section. Relevant post-service treatment records reflect treatment for and removal of cancerous lesions from the Veteran's skin throughout the years. The objective evidence of record reflects that basal cell carcinoma was first diagnosed in February 1998, approximately 47 years after his separation from service. Another pathology report dated in April 2004 also revealed findings of basal cell carcinoma on the Veteran's scalp behind the Veteran's left ear. A February 2009 diagnostic report reflects that a biopsy of the Veteran's skin at the base of his neck on the upper chest region was indicative of squamous cell carcinoma. In January 2009, the RO requested a copy of the Veteran's DD Form 1141, if any, from the Army Dosimetry Center. In a response the same month, the Center's personnel indicated that they had no records regarding the Veteran, and in fact, they had no records prior to mid-1954. Pursuant to the December 2010 remand, the RO contacted the Defense Threat Reduction Agency (DTRA), prepared a scenario of the Veteran's participation and radiation exposure, and requested verification of the Veteran's participation in radiation risk activity. In a March 2011 response from the DTRA and United States Strategic Command Center for Combating Weapons of Mass Destruction, it was explained that the dose reconstruction applied to the Veteran's scenario description originated from the report entitled "Radiation Dose Reconstruction: U.S. Occupation Forces in Hiroshima and Nagasaki, Japan, 1945-1946 (DNA 5512F)." Applying the information in this report to the Veteran's scenario, it was determined that, based on the Veteran's presence at Hiroshima sometime between December 1950 to February 1951, he was exposed to a total external gamma dose of 0.011 rem; an upper bound total external gamma dose of 0.033 rem; a total skin dose beta plus gamma to the lower leg of 0.098 rem, an upper bound total skin dose beta plus gamma of 0.295 rem; a total skin dose beta plus gamma to the scalp of 0.025 rem; and an upper bound total skin dose beta plus gamma of 0.074 rem. In a December 2012 memorandum, the VA Director of the Post 9-11 Era Environmental Health Program, P.C., M.D., reviewed the relevant evidence, including the dose assessment, and observed that the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) had developed a program that would estimate the likelihood that exposure to ionizing radiation was responsible for the development of the Veteran's skin cancers. According to Dr. C., "[f]or purposes of calculation, the Veteran's radiation doses were assumed to have been received as a single acute doses in the earliest year of exposure (1950) . . . [which] would tend to increase the probability of causation as calculated by IREP." Dr. C. further explained that for the Veteran's skin cancers, he used the highest single dose to any one area (0.295 rem) to calculate the probability of causation with IREP. After entering this information, it was determined that even if the Veteran's radiation exposure was in the 99th percentile value, the probability that his exposure resulted in his basal cell carcinoma was 2.56 percent, and the probability that his exposure caused his squamous cell carcinoma was 0.08 percent. According to Dr. C., in view of these results, it is not likely that the Veteran's basal cell carcinoma of the skin and/or squamous cell carcinoma of the skin can be attributed to his radiation exposure while in service. In a January 2013 letter, the Director of Compensation Service reviewed the December 2012 memorandum as well as the March 2011 dose estimates provided by the DTRA. After reviewing the Veteran's medical history, as well as medical evidence in its entirety, he opined that there was no reasonable possibility that the Veteran's skin cancer, diagnosed as basal cell carcinoma and squamous cell carcinoma, can be attributed to exposure to ionizing radiation in service. In reaching this determination, the Director of Compensation Service also referenced a medical literature article issued by the Health Physics Society, as cited in their position statement (PS010-1 Radiation Risk in Perspective), wherein the Health Physics Society recommended against the "quantitative estimation of health risks below an individual dose of 5 rem in one year or a lifetime dose of 10 rem above that received from natural sources." The statement further indicated that although there was substantial scientific evidence for health risks following high-dose exposures, for any exposure below 5-10 rem (which includes occupational and environment exposures), the risks of health effects were either too small to be observed or are nonexistent. Upon review of the entire evidence of record, to include the treatment records, lay statements of the Veteran, records of his ionizing radiation exposure, and the VA opinions of record, it is clear that the Veteran was exposed to ionizing radiation during his period of active service and that his skin cancer is a radiogenic disease. The preponderance of the evidence, however, is against a finding that his radiation exposure caused his skin cancer-namely his basal cell carcinoma and squamous cell carcinoma. The Board has afforded the December 2012 VA opinion issued by the VA Director of the Post 9-11 Era Environmental Health Program, in conjunction with the January 2013 opinion issued by the VA Director of Compensation great probative value. Both opinions consisted of a complete review of the claims folder and application of the relevant dose estimates. In the December 2012 opinion, the VA physician applied the March 2011 dose estimates as provided by the DTRA, and utilized IREP in calculating the numerical probability that the Veteran's exposure to ionizing radiation caused the development of his skin cancer. Based on the probability of causation, the VA physician could not find sufficient medical evidence to support an association between the Veteran's skin cancer and his in-service exposure to radiation. Additionally, in the January 2013 opinion, the Director of Compensation Service reviewed the Veteran's medical history in its entirety, and referred to a pertinent medical literature article that focused on the association between certain health risks and various levels of ionizing radiation exposure. In light of the medical evidence of record, the relevant dose estimates and the pertinent medical literature, the Director of Compensation Service found no reasonable possibility that the Veteran's skin cancer could be attributed to his exposure to ionizing radiation in service. The Board accepts these opinions as being the most probative medical evidence on the subject, as they considered the dose estimates supplied by the DTRA, contain detailed rationales for the medical conclusions reached, and are based on sound medical principles. See Boggs v. West, 11 Vet. App. 334 (1998). The Board also notes that the aforementioned opinions are the only discussion of any possible relationship between the Veteran's current skin cancer and his exposure to ionizing radiation. As there is no other medical evidence for consideration, the Board finds that there is no competent medical evidence indicating that the Veteran's skin cancer resulted from radiation exposure in service. 38 C.F.R. § 3.311(f). The Board has also considered whether service connection for the Veteran's skin cancer can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service on a direct basis. As detailed, the service treatment records are void of any finding of this disability. Indeed, the first evidence of skin cancer was nearly 47 years after the Veteran's separation from service. A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1130 (Fed. Cir. 2000). Although an opinion was obtained with regard to any etiological relationship to the Veteran's in-service ionizing radiation exposure, the Board declines to obtain a medical nexus opinion with respect to the issue of entitlement to service connection on a direct basis, because there is no evidence of these pertinent disabilities in service. Basal cell carcinoma was first diagnosed nearly 47 years after the Veteran's separation from service, and squamous cell carcinoma was first diagnosed fifty-eight years after the Veteran's separation from service, thus there is no true indication that these disabilities are directly associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Charles v. Principi, 16 Vet. App. 370 (2002). Indeed, the Veteran has not attributed his current skin cancer to any in-service event or injury other than his in-service exposure to ionizing radiation-a theory which has already been addressed in the medical opinions discussed above. In addition, the available service treatment records are clear for any signs or manifestations of a skin disorder in service. In view of the negative service treatment records, and the lack of diagnosis of the disability or any manifestations of said disability for many years post-service, any opinion relating the pertinent disability to service would certainly be speculative. Service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. The duty to assist is not invoked, even under McLendon or Charles, where "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. § 5103A(a)(2). The Board has also considered the Veteran's lay contentions that his skin cancer is the result of his exposure to radiation in service. The Board finds that the Veteran is competent to state his recollections of his in-service experiences, and his assertions as to his in-service duties and radiation exposure are credible in light of the documentation of radiation exposure. The Veteran, however, is not shown to possess any specialized training in the medical field to provide a competent medical opinion on this point. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board finds the medical evidence on this point to be of greater probative value than the Veteran's lay contentions. In sum, although the Board acknowledges the Veteran's sincere belief that his skin cancer is related to his radiation exposure, the preponderance of the evidence indicates that this is not the case. Accordingly, service connection for skin cancer is not warranted on any basis. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for skin cancer, claimed as secondary to exposure to ionizing radiation, is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs