Citation Nr: 1510851 Decision Date: 03/16/15 Archive Date: 03/27/15 DOCKET NO. 14-20 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for malignant melanoma of the back to include as due to radiation exposure. 2. Entitlement to service connection for third testicle growth to include as due to radiation exposure. 3. Entitlement to service connection for sterility to include as due to radiation exposure. 4. Entitlement to service connection for skin growth to include as due to radiation exposure. 5. Entitlement to service connection for cataracts to include as due to radiation exposure. 6. Entitlement to service connection for a knee disability to include as due to radiation exposure. REPRESENTATION Appellant represented by: Matthew McAlerney, Attorney at Law ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran had active service from April 1967 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board notes that it has reviewed this appeal using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Most of the records are in the VBMS file. The issues of entitlement to service connection for malignant melanoma of the back, cataracts, and a knee disability to include as due to radiation exposure are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Third testicle growth was not manifest during service and is not otherwise related to service. 2. Sterility was not manifest during service and is not otherwise related to service. 3. Skin growth was not manifest during service and is not otherwise related to service. CONCLUSIONS OF LAW 1. Third testicle growth was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.309, 3.311 (2014). 2. Sterility was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.309, 3.311. 3. Skin growth was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in May 2006 and November 2008, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letters provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. The appeal was most recently readjudicated in the September 2012 supplemental statement of the case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and identified private medical records. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. The Board acknowledges that the Veteran has not been afforded a VA examination in relation to his claims for service connection for sterility, skin growth and third testicle growth. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the evidence does not indicate that the claimed disabilities are related to service such as to require an examination, even under the low threshold of McLendon. As such, a VA examination is not warranted to address these issues for service connection. The Board also notes that some of the Veteran's service treatment records are missing. The United States Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because of missing records, the analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). It is noted that in the Remand section below, additional development is to be undertaken concerning the radiation exposure that may have been experienced. As set forth in that section, there is a reported nexus connection made by the medical evidence to radiation exposure as to the remanded issues. There is no such nexus connection here as to the issues decided herein, thus these matters need not be included in that development. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claims. ANALYSIS The Veteran appeals the denial of service connection for sterility, skin growth and third testicle growth. He argues that his disabilities were caused by exposure to nuclear radiation at a former weapons test site. According to the Veteran, he immersed himself in the waters of a nuclear bomb crater and even drank the water. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for disability based on exposure to ionizing radiation can be demonstrated by three different methods. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service-connected when they occur in "radiation-exposed Veterans." 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service connected, provided that certain conditions are met, pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Diseases subject to presumptive service connection based on participation in a "radiation-risk activity" 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 myelomas; (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; (xvi) bronchial alveolar carcinoma; (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). 38 C.F.R. § 3.311 provides instruction in the development of claims based on exposure to ionizing radiation. Pursuant to 38 C.F.R. § 3.311 "radiogenic disease" is defined as a disease that may be induced by ionizing radiation including those enumerated under the regulation, including stomach cancer, and "any other cancer." 38 C.F.R. § 3.311(b)(2) (xxiv). Based on a review of the record, the Board finds that service connection is not warranted under the provisions of 38 U.S.C.A. § 1112(c) and38 C.F.R. § 3.309(d). To that end, the RO has conceded that the Veteran was exposed to radiation from 1967 to 1968 while he was assigned to LORAN station on Eniwetok. The Board notes, however, that sterility, skin growth and third testicle growth are not listed diseases in 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Therefore, although radiation exposure has been conceded sterility, skin growth, and third testicle growth are not subject to presumptive service connection under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). While service connection for sterility, skin growth and third testicle growth based on exposure to ionizing radiation is not warranted on a presumptive basis, direct service connection may be established by competent evidence establishing the existence of a medical nexus between the claimed conditions and service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). After review of the record, the Board finds against service connection for sterility, skin growth and third testicle growth on a direct basis. To that end, available service treatment records are negative for any complaints, treatment and/or diagnoses for sterility, skin growth and/or third testicle growth. Rather, a review of the record discloses that the Veteran's disabilities manifested years post service. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The disorders are shown years post-service and there is no competent evidence that attributes the pathology to service, or the symptoms therein. The Board has reviewed the service examination reports, VA medical records and private treatment records of file. These records do not include any opinion linking the Veteran's disabilities directly to service to include exposure to radiation. There is no competent evidence or opinion that the Veteran's disabilities are related to his military service and neither the Veteran nor his representative has presented any such clinical opinion. The Board acknowledges the lay statements of the Veteran. The Board notes that the Veteran is competent to report symptoms to include skin problems and fertility issues and the circumstances surrounding such. Although lay persons, however, are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, the etiology of his sterility, skin growth and third testicle growth 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). There is no indication that the Veteran has the knowledge and/or expertise to render medical opinions addressing the etiology of the claimed disorders and his exposure to radiation. The Board finds that the issues at hand, i.e. the etiology of his sterility, skin growth and third testicle growth are far too complex medical questions to lend themselves to the opinion of a layperson. The Board acknowledges that the Veteran has submitted literature on radiation exposure and the effects. The articles, however, are not specific to the appellant and the findings were not based on the appellant's particular history and circumstances. The Board notes that evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Here, crucially, the articles are general in nature and do not specifically relate to the facts and circumstances surrounding this particular case. In sum, the most probative evidence of record is devoid of a showing that the Veteran's disabilities are related to service or any incident therein. Hence, entitlement to service connection is denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for third testicle growth to include as due to radiation exposure is denied. Entitlement to service connection for sterility to include as due to radiation exposure is denied. Entitlement to service connection for skin growth to include as due to radiation exposure is denied. REMAND The Veteran appeals the denial of service connection for malignant melanoma of the back, cataracts and a knee disability to include as due to radiation exposure. The RO has conceded that the Veteran was exposed to radiation from 1967 to 1968. In May 2009, the Chief Public Health and Environmental Hazards Officer, Dr. Deyton, found that the radiation dose incurred by the Veteran would be no more than 10% higher than natural background and that this dose would be no more than 0.1 rem during the two years in question. The Veteran's exposure dose was regarded as having been received as a single acute exposure in 1967. It was determined that this assumption would tend to increase the probability of causation for cancers. The program calculated a 99th percentile value for the probability of causation for malignant melanoma of 3.87%. It was opined that it was unlikely that the Veteran's malignant melanoma can be attributed to radiation exposure while in service. It appears that this exposure was predicated primarily, if not solely on radiation from the navigation equipment. The Veteran has contended that he was exposed to additional radiation as he was stationed at a bomb site and went swimming in a bomb crater. It does not appear that this information was considered in the figures arrived at by Dr. Deyton. Further development is indicated on this matter. In April 2014, however, Dr. Dahle opined that the Veteran's melanoma, arthritis and cataracts are a direct result of his exposure to ionizing radiation during service. He indicated that his research showed that the Veteran would have been subjected to additional radiation exposure as a result of the testing that was done on Eniwetok Atoll. It has been noted that the Veteran was there in 1967 and 1968, prior to the subsequent cleanup of the soil on that Atoll. This information should be forwarded to the Chief Public Health and Environmental Hazards Officer, or other appropriate authority for review, validation, or further explanation. In light of the findings and opinion of Dr. Dahle, the Board finds that a VA compensation and pension examination is warranted. To that end, the Board has been presented with evidence that attributes the Veteran's melanoma, arthritis and cataracts to his exposure to radiation in service. The Veteran has not been afforded a VA examination in relation to the claims for service connection for malignant melanoma of the back, cataracts and a knee disability. In view of VA's duty to assist obligations, which include the duty to obtain a VA examination or opinion when necessary to decide a claim, and based upon guidance from the Court, remand for the purpose of obtaining a VA examination(s) is required. Accordingly, the case is REMANDED for the following action: 1. Forward the claims folder, to include Dr. Dahle's analysis of the radiation exposure at Eniwetok Atoll, to the Chief Public Health and Environmental Hazards Officer or other appropriate authority. The Officer should enter a discussion as to the science set out, and discuss whether there is other methodology to determine the amount of radiation exposure likely to have been present on the Atoll in 1967 and 1968 as a result of prior nuclear testing. The Veteran's report of swimming in the crater should be considered. A radiation dose estimate should be determined with consideration of this history and the exposure to the radiation from the navigation equipment. 2. Schedule the Veteran for a VA examination to determine the etiology of his malignant melanoma of the back, cataracts and/or arthritis of the knees. The electronic file must be made available to the examiner for review. The examiner must opine whether the Veteran's melanoma of the back, cataracts and/or arthritis of the knees were incurred in or due to the Veteran's active duty service, to include exposure to ionizing radiation. The VA examiner must specifically address the findings and opinions of Dr. Deyton and Dr. Dahle and any new radiation dose estimates. A complete medical rationale is required for all opinions. 3. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ must readjudicate the issues. All applicable laws and regulations should be considered. If the benefits sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs