Citation Nr: 1334711 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 05-21 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for skin cancer of the face and neck. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran's active service extended from January 1962 to August 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2002 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied a claim for service connection for skin cancer of the face and neck. In August 2007, and February 2013, the Board remanded this claim for additional development. In June 2005, the Veteran was afforded a hearing at the RO. In June 2006, the Veteran was afforded a hearing before an Acting Veterans Law Judge who is no longer with the Board. In February 2012, the Veteran was afforded a hearing before the undersigned, who is the Acting Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). FINDING OF FACT The Veteran does not have skin cancer of the face and neck as a result of his service. CONCLUSION OF LAW Skin cancer of the face and neck was not incurred or aggravated as a result of the Veteran's active military service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran contends that the disability at issue is the result of his exposure to ionizing radiation during training in service. He asserts that while attending weapons school at Fort Lowery Air Force Base, he was exposed to ionizing radiation from a deactivated nuclear weapon which was used for training purposes. Specifically, the Veteran states that he was asked to look down the barrel of a nuclear weapon to see where the radioactive material was loaded. He did not experience any immediate symptoms; however, he reported that two fellow soldiers had radiation burns to the eyes. During his June 2005 hearing, the Veteran testified that he had skin cancer in the 1960s and 1970s. During his February 2012 Board hearing, his testimony was somewhat unclear, but appears to indicate that he first had skin cancer in the 1980s. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease when, "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." 38 C.F.R. § 3.303(d). Service connection may also be granted for malignant tumors, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309. The Veteran's service personnel records include his discharge (DD Form 214), which shows that his military occupation specialty was illustrator. The Veteran's personnel file (AF Form 7) shows that he was a student at Lowry Air Force Base (AFB) between February and July of 1962. Between July 1962 and April 1964, his duty title involved munitions, and weapons loading, at two other Air Force bases. A Special Order, dated in June 1962, indicates that the Veteran had graduated from a weapons mechanic course at Lowry AFB. The Veteran's service treatment reports show that in July 1967, he was noted to have seven moles, with on epithelial tag removed. His separation examination report, dated in February 1967, shows that his skin was clinically evaluated as normal. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 1987 and 2013. A billing statement from a private physician, G.L.K., D.O., indicates treatment consistent with skin symptoms in September 1987. The VA medical reports include VA progress notes, which show that in October 1999, the Veteran sought treatment for a tender mass on his mid-back. He reported that his father had had cancer of the larynx, and that his mother had had breast cancer. See also progress notes, dated in February and June of 2002 (same). In March 2000, the Veteran sought treatment for a knot on his neck. He was noted to have a suspicious mole on his upper back. He reported that he had been treated for cancer of his nose by a private physician in 1983 or 1984. A VA hospital report, dated in October 2000, shows treatment for an esophageal stricture, and is remarkable for a notation that he has "trouble with his breathing, possibly because of chemicals that he is exposed to on his job." A January 2002 VA progress note indicates that the Veteran had received cryosurgery for a skin tag under his arm. A September 2002 VA examination report for the skin notes tinea unguium and melanocytic nevi removal. He asserted that he had a history of skin cancer on his nose, and melanocytic nevi on the skin of his neck that had been removed by the barber while getting his hair cut. The diagnoses were tinea unguium of six toenails, and melanocytic nevi removal. A January 2003 VA progress note shows that the Veteran reported a history of skin cancer on his nose in 1984, of unknown type. See also June 2003 report (same). The June 2003 report notes actinic keratoses of the forehead and ear, destroyed by cryotherapy. An April 2004 report notes seborrheic dermatitis, and seborrheic keratoses, and solar lentigo, and a scar of the nose with history of non-melanoma cancer with no evidence of recurrence. The Veteran's spouse has submitted several statements in which she states that she has been married to the Veteran since 1982, and that the Veteran told her that during service he had looked down the barrel of a deactivated nuclear weapon, and that he has symptoms involving his teeth, skin, and gastrointestinal system. She asserts he has undergone a decline in health due to in-service exposure to radiation. The Veteran has submitted articles discussing esophageal radiation injury. The Board finds that a preponderance of the evidence is against entitlement to service connection for the claimed condition. The Board first notes that the Veteran was not treated for skin cancer during service, nor was the claimed condition shown in the Veteran's separation examination report. In addition, the earliest medical record indicating treatment for a skin disorder is dated no earlier than 1987, many years after separation from service. Such evidence, without allegations of continuous symptoms since service (the Veteran himself does not claim continuous symptoms since service), is clearly against entitlement to service connection for any of the claimed disabilities on a direct or presumptive basis. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Accordingly, service connection (on a direct or presumptive basis) is not warranted. However, the Veteran's primary argument is that he has the claimed condition due to exposure to ionizing radiation during service. In this regard, the Board first notes that the Veteran does not qualify as a radiation-exposed veteran involved in radiation-risk activity, that is, either as a participant in a test of a nuclear device or in the occupation of Hiroshima or Nagasaki, Japan by U.S. forces during the period beginning on August 6, 1945 and ending on July 1, 1946. See 38 C.F.R. § 3.309(d)(3) (2013). Therefore, the presumption of service connection for specific diseases for radiation-exposed veterans under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) does not apply. However, skin cancer is a radiogenic disease, and is subject to the development required under 38 C.F.R. § 3.311. See 38 C.F.R. § 3.311(b)(2)(vii). In May and June of 2011, the RO requested the Veteran's radiation dose information. See 38 C.F.R. § 3.311(a)(2). The RO's requests included requests for a copy of the Veteran's "record of occupational exposure to ionizing radiation" (DD Form 1141); this record was not found. In June 2011, the RO received a dose estimate from the Air Force Medical Support Agency (AFMSA), Office of the Surgeon General. Specifically, the AFMSA stated that it could find no external or internal radiation exposure for the Veteran, and that after consulting with the Air Force Safety Center (AFSC), the AFSC determined that the Veteran had the potential to be exposed to ionizing radiation as a munitions specialist. The AFSC further determined that the Veteran's estimated maximum total effective dose equivalent (TEDE) "or sum of external and internal dose" was approximately 0.380 rem (380 millirem). The AFMSA noted that, "In comparison, according to 10 38 C.F.R. § 20.1201, the annual TEDE limit for occupationally exposed individuals is 5 rem per year." A June 2011 report from the Director, VA Environmental Agents Service, provided an opinion on a claim not currently in issue. In relevant part, in support of the conclusion, the Director cited a position statement of the Health Physics Society (HPS) which recommends against 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 HPS position statement reported that there is substantial and convincing scientific evidence for health risks following high dose exposure, however, below five to ten rem (which includes occupational and environmental exposures) risks of health effects are either too small to be observed or are nonexistent. Citing position statement PS010-1, Radiation Risk in Perspective, Health Physics Society (August 2004). In August 2012, the Board requested a specialist medical opinion through a Veterans Heath Administration (VHA) directive. Specifically, the Board requested, in relevant part, that an opinion be provided as to whether it is at least as likely as not that the Veteran has a skin disability that is related to exposure to ionizing radiation during service. In September 2012, an opinion was obtained from R.L., a VA certified health physicist, and radiation safety officer. He concluded that he could find no direct evidence of the Veteran being exposed to radiation during the alleged incident involving his weapons training course in March 1962, and that if the Veteran was exposed to radiation during his military service, he could find no reasonable possibility for the Veteran to have received any radiation injury based on a maximum potential estimated dose of 380 mrem reported by the AFSC. He further concluded that it is not at least as likely as not that the Veteran's skin disability is due to exposure to ionizing radiation during service. He explained the following: the Veteran claimed that the weapon he looked into during service was deactivated, however, if the weapon did contain nuclear material, then his exposure would be comparable to a typical day of natural background radiation. The maximum estimated dose of 380 mrem is consistent with the annual average background radiation of 300 mrem for the population of the United States. The maximum potential dose (380 mrem) was not attributed to the alleged incident involving a deactivated weapon, and is likely to be a de minimis dose based on the limit of detection for the maximum potential estimated dose over the Veteran's entire military service. The Veteran's claim of two of his classmates receiving radiation burns to their eyes is not consistent with the known effects of radiation or the alleged maximum potential estimated dose of 380 mrem. The lens of the eye is most sensitive to cataracts, that is, a cataract lesion is not a radiation burn. Cataract lesions may result on the cornea of the eye after a radiation threshold dose that is orders of magnitude higher than the alleged maximum potential estimated dose of 380 mrem. There is also a delay of several months before the onset of any cataract. Therefore, the alleged eye injuries to the Veteran's classmates on the day after the alleged exposure is not consistent with the alleged maximum potential dose of 380 mrem estimated by the AFSC, or the known effects of radiation on the eyes. The VHA expert also concluded that there is no link between radiation and the Veteran's claim to cancer, or any other injury. The expert stated that the reference in the June 2011 statement from the Director of the Environmental Agents Service, as to the Health Physics Society's recommendation against quantitative estimation of health risks below an individual dose of 5 rem in one year or a lifetime dose of 10 rem because the risks of any health effects are either too small to be observed or are nonexistent, is accurate and consistent with the radiation safety officer's opinion. The Veteran's dose estimate of 380 mrem is consistent with the annual average natural background radiation for the population of the United States. Any likeliness of a radiation-induced cancer injury would not be distinguishable from the natural incidence of cancer. If the cancer risk were to be quantified, the accepted cancer risk per 1,000 mrem is 5 x 10-4. It is not recommended by the Health Physics Society to quantify this risk based on it being too small to observe, or nonexistent. However, using this accepted risk approach, the risk of cancer from the maximum potential estimated dose of less than 0.00005, which is five orders of magnitude (10,000 times) less than the likely standard of 50 percent probability or greater. In February 2013, the Board remanded this claim. The Board stated that although a VHA opinion had been obtained, the claim had not yet been forwarded to the Director, Compensation and Pension Service, for an etiological opinion. Citing 38 C.F.R. § 3.311(c). In April 2013, the RO in North Little Rock, Arkansas, forwarded the claim to the Director, Compensation and Pension Service ("C&P Director"), for an etiological opinion. In May 2013, the C&P Director forwarded the claim to the Under Secretary for Health for an etiological opinion. The C&P Director noted inter alia that the Veteran had radiation exposure as a munitions specialist, that the radiogenic disease in issue is skin cancer, which was treated in "the 1980s" at which point he had a growth removed from his nose, which he stated he was told was skin cancer, in March 2003 an epidermal inclusion cyst was removed from the left side of his neck, that non-melanoma skin cancer was diagnosed by history some 20 years after enlistment, that the Veteran is a Caucasian male whose age at the time of his enlistment was 18, that the dose estimate was 380 millirem, that there was a family history of a father with cancer of the larynx, that the Veteran was a retired painter and was a nonsmoker. In May 2013, an opinion was obtained from P.C., M.D. MPH, Director, Post 9-11 Environmental Health Program (DEHP). Dr. C stated, in relevant part: The Air Force Medical Support Agency (AFMSA) provided an estimated maximum total effective dose equivalent (TEDE), or sum of external and internal dose, for the Veteran of approximately 380 mrem (0.380 rem) based upon his duties while in service. He was diagnosed by history with non melanoma skin cancer in 2002 and 2003. The claim contends that radiation exposure during military service (1962 to 1967) is the cause of said skin cancers. The Health Physics Society, in their position statement PS010-1, Radiation Risk in Perspective, revised in August 2004, states that "in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against 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 position statement goes on to say that "there is substantial and convincing scientific evidence for health risks following high-dose exposures. However, below 5-10 rem (which includes occupational and environmental exposures) risks of health effects are either too small to be observed or are nonexistent." Since the Veteran's radiation dose did not exceed 5 rem in one year or 10 rem in a lifetime, it is our opinion that it is unlikely that his non melanoma skin cancers can be attributed to radiation exposure while in military service. In a statement, dated in May 2013, the C&P Director stated that the Veteran's claims file had been reviewed. The C&P Director noted the May 2013 DEHP opinion, which stated that it was unlikely that the Veteran's non-melanoma cancers can be attributed to exposure to ionizing radiation in service. The Veteran's relevant history was summarized. The C&P Director concluded: As a result of this opinion, and following review of the evidence in its entirety, it is our opinion that there is no reasonable possibility that the Veteran's non-melanoma cancer, by history, of face and neck is the result of his occupational exposure to ionizing radiation in service. As an initial matter, as noted in the Board's February 2013 decision, and notwithstanding certain language in its VHA opinion request, the Board finds that the Veteran is not a credible historian in regards to the circumstances of his exposure. The Veteran's service treatment reports contain several notations stating that he was "surly," and "hostile," had a poor attitude, a lack of motivation, and "a determined desire" to get out of his military occupation specialty. The Veteran's claim of being exposed to radiation when ordered to examine a deactivated nuclear weapon is also not corroborated by any objective evidence. In this regard, a February 1967 "report of medical history" notes that he had worked with radioactive substance, with "no overexposure." Furthermore, the September 2012 VHA opinion states that the Veteran's claim of two of his classmates receiving radiation burns to their eyes is not consistent with the known effects of radiation or the alleged maximum potential estimated dose of 380 mrem. The VHA expert's conclusion is not contradicted by any other expert opinion of record. Therefore, any discrepancy or obvious contradiction in the Veteran's testimony is of even greater significance. In addition, the Veteran has complained of memory difficulties, and he has been noted to have dementia. See e.g., VA progress notes, dated in March 2003, May 2004, August 2006, January 2007, September 2008, March 2011. The Board therefore finds that the Veteran is also not a credible historian with respect to the circumstances surrounding his direct exposure to an allegedly improperly secured deactivated nuclear weapon. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In summary, the Board finds that the claim must be denied. A radiation dose estimate has been obtained. Based on this estimate, an opinion was obtained from the Director, Post 9-11 Environmental Health Program, and the VA Director of the Compensation and Pension Services. A VHA opinion has also been obtained from a certified health physicist and radiation safety officer. All of these opinions weigh against the claim. With one exception, discussed infra, there is no countervailing, competent evidence of record to show that the Veteran has the claimed condition due to exposure to radiation. Given the foregoing, service connection for the claimed condition is not warranted under the procedures as set forth in 38 C.F.R. § 3.311. As was noted in the Board's February 2013 decision, the Board has considered a statement from a VA physician, Dr. F., dated in November 2003, which shows that he states that radiation "could have been sufficient to produce problems in later years including some of the problems he has had, especially skin cancer." However, this statement is equivocal and speculative in its terms, and it is not shown to have been based on a review of the Veteran's C-file, or any other detailed and reliable medical history, and there is no indication that it was based on a radiation dose estimate. See Prejean v. West, 13 Vet. App. 444, 448- 9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, this opinion is insufficiently probative to warrant a grant of the claim. In reaching its decision under 38 C.F.R. § 3.311, the Board has taken the factors as listed in 38 C.F.R. § 3.311(e) into consideration, as mandated by the Court in Hilkert v. West, 11 Vet. App. 284 (1998). Specifically, the Board notes the following: the Veteran is a male; he was about 19 years of age when he alleges that he was exposed to radiation; there is a report that his father had cancer of the larynx; the earliest medical evidence of skin cancer is dated in 1987, which is many years after active duty service, and there is no verified record of smoking, or of post-service exposure to carcinogens. The Board has additionally considered the Veteran's articles. With regard to medical treatise evidence, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). In the present case, the treatise evidence submitted by the Veteran is not accompanied by the opinion of any medical expert, and the Board concludes that this information is insufficient to establish the required medical nexus opinion. Moreover, these articles are general in nature, and they do not significantly approach the facts and circumstances surrounding the Veteran's case to warrant any probative weight. The Board therefore finds that they are insufficiently probative to warrant a grant of the claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Given the foregoing, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. With regard to the Veteran's own contentions, and the lay statements, although lay persons are considered competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether skin cancer of the face and neck are due to exposure to radiation during service, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Skin cancers are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In addition, the Veteran has not asserted a continuity of symptoms since his active duty, and the Board has determined that the Veteran is not a credible historian in regards to the circumstances of his exposure. To reiterate, the Veteran is found to be lacking in credibility with respect to the circumstances surrounding his direct exposure to an allegedly improperly secured deactivated nuclear weapon, and he does not have the requisite skills, knowledge, or training, to be competent to provide a diagnosis of skin cancer, or to state whether such disorder was caused by service, to include as due to exposure to ionizing radiation. Jandreau, supra. In this case, the Veteran's service treatment reports do not show any relevant diagnosis. Based upon the etiological opinions, and the other evidence of record, the Board has determined that the preponderance of the evidence is against the claim. Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran's contentions to the effect that he has skin cancer that is related to his service. The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in September 2003 and February 2005. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The September 2003 VCAA notice was issued after the February 2002 rating decision, and did not comply with the requirement that the notice must precede the adjudication. Recent court decisions indicate that when VA fails to furnish information that is necessary to substantiate the claim ("Type One error"), such error is presumed prejudicial, and requires reversal unless VA can show that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), reversed and remanded on other grounds sub nom, Shinseki v. Sanders, 129 S.Ct. 1696 (2009). To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board finds that any notice error did not affect the essential fairness of the adjudication as VA has obtained all relevant evidence, and as the appellant has demonstrated actual knowledge of what was necessary to substantiate the claim. In this regard, the Veteran has been provided a meaningful opportunity to participate effectively in the processing of his claim, as he has been afforded the opportunity to submit additional argument and evidence, which he has done, and he addressed the issue at a hearing in 2005, 2006, and in February 2012. In addition, a review of the appellant's submissions, and the transcript of his hearings, indicates an accurate understanding of the issue on appeal. See e.g., Veteran's representative's statements, received in December 2012 and July 2013. After issuing the VCAA letters discussed above, the RO reconsidered the Veteran's claim on several occasions, most recently in a June 2013 Supplemental Statement of the Case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (holding that VA cured any failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). These actions indicate actual knowledge on the part of the claimant, and that a reasonable person could be expected to understand from the notice what was needed. Sanders. The Board therefore finds that no prejudice to the Veteran will result from proceeding with adjudication without additional notice or process. Furthermore, as discussed below, it appears that VA has obtained all relevant evidence. Id. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. To the extent that the Veteran has presented a claim based on exposure to ionizing radiation, a dose estimate has been obtained, and opinions have been obtained from the Director, Radiation and Physical Exposures, and the VA Director of the Compensation and Pension Services (prostate cancer). A VHA opinion has also been obtained. The development required at 38 C.F.R. § 3.311 has therefore been completed. The Board further notes that it appears that the Veteran is in receipt of benefits from the Social Security Administration (SSA). See September 2006 VA progress note. However, as noted in the Board's February 2103 decision, the issue on appeal pertains to service connection for disability due to exposure to ionizing radiation, and the Veteran has not asserted that the SSA's records are relevant to his claim. Given the foregoing, and the nature of the claim, there is no basis to find that there are outstanding medical records that are relevant to the issue on appeal, and that any further development is warranted. See 38 C.F.R. § 3.159(d) (2013); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In February 2013, the Board remanded the claim. The Board directed that the Veteran's claims file be forwarded to the Under Secretary for Benefits for a supplemental opinion on the etiology of the Veteran's skin cancer of the face and neck. This has been done. Under the circumstances, the Board finds that there has been substantial compliance with the Board's remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Simply stated, the Board finds that the service and post-service medical record provides evidence against this claim. The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for skin cancer of the face and neck is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs