Citation Nr: 1801187 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 15-36 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of squamous cell carcinoma (claimed as skin cancer). 2. Entitlement to service connection for residuals of basal cell carcinoma (claimed as skin cancer). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Medina, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1950 to December 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran withdrew his request for a Board hearing. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Squamous cell carcinoma, to include residuals thereof, was not shown during the Veteran's active service or for many years thereafter, and the most probative evidence indicates the Veteran's residual squamous cell carcinoma is not related to his active service. 2. Basal cell carcinoma, to include residuals thereof, was not shown during the Veteran's active service or for many years thereafter, and the most probative evidence indicates the Veteran's residual basal cell carcinoma is not related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of squamous cell carcinoma have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2017). 2. The criteria for entitlement to service connection for residuals of basal cell carcinoma have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a malignant tumor becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. Service connection for skin cancer claimed to be due to exposure to ionizing radiation in service, can be established in several different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Fourth, cancer manifest to a compensable degree within one year of discharge from service may be service connected under 38 C.F.R. § 3.309(a). 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, 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)(i). The term "onsite participation" means during the official operational period of an atmospheric nuclear test, presence at the test site, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test; during the six month period following the official operational period of an atmospheric nuclear test, presence at the test site or other test staging area to perform official military duties in connection with completion of projects related to the nuclear test including decontamination of equipment used during the nuclear test; service as a member of the garrison or maintenance forces on Eniwetok during the periods June 21, 1951 through July 1, 1952, August 7, 1956 through August 7, 1957, or November 1, 1958 through April 30, 1959; or assignment to official military duties at Naval Shipyards involving the decontamination of ships that participated in Operation Crossroads. 38 CFR 3.309(d)(3)(iv)(D). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that service connection is warranted for residuals of squamous cell carcinoma and basal cell carcinoma as due to exposure to radiation during his active duty service. Specifically, he contends that while stationed at Nellis Air Force Base (AFB) in Las Vegas, Nevada from July 1952 until December 1954, he witnessed two detonations, Operation UPSHOT-KNOTHOLE and/or CASTLE, and stated that due to a wind shift, the radiation cloud passed right over the Nellis AFB. He stated he was approximately 50 miles from ground zero during detonations, and that a film badge was not issued. In a December 2011 report of contact, he stated he was not treated for the condition in service and that there would not be anything relevant in his service treatment records with respect to his claim. He further stated the condition began a few years after he left service. As an initial matter, the record reflects the Veteran has been diagnosed with squamous cell carcinoma and basal cell carcinoma. Accordingly, the first criterion for establishing service connection, a current residual disability, has been met for purposes of continuing the analysis. The question becomes whether the disabilities are related to the Veteran's active duty service, to include radiation exposure. Upon review of the record, however, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection. Per the Veteran's service personnel records and the April 2013 response from the Defense Threat Reduction Agency (DTRA), the Veteran reported to the 3594th, Flying Training Squadron at Nellis AFB, on July 14, 1952. On October 19, 1953, the Veteran was transferred to the 3592nd Maintenance Squadron, also stationed at the Nellis AFB. The evidence shows he remained with this unit, including periods of ordinary leave, until July 1, 1954, when he transferred to the 3598th Maintenance Squadron, Nellis AFB. The Veteran served with this unit (which was renamed the 3598th Flight Line Maintenance Squadron on October 1, 1954) until his discharge from service on December 9, 1954. The United States Government conducted Operation UPSHOT-KNOTHOLE at the Nevada Test Site (NTS) from March 17 to June 20, 1953, and Operation CASTLE at the Pacific Proving Ground (PPG) from March 1, to May 31, 1954. Unit morning reports do not indicate that the Veteran was assigned any duties in support of these operations or that he was assigned temporary duty to the NTS or PPG. Nellis AFB is located approximately 65 miles southeast of NTS. Additionally, after a search of available dosimetry data, the DTRA found no record of radiation exposure. In summary, the DTRA concluded that historical records do not document the Veteran's participation in atmospheric nuclear testing as defined by VA. The Board finds the assertions of the Veteran that he participated in atmospheric testing to be less persuasive and probative than the response from the DTRA. See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). In this regard, the DTRA, in the April 2013 letter, explained that historical records did not show that the Veteran was ever present at a nuclear weapons test site or that he otherwise participated in atmospheric nuclear testing. That agency further indicated that a careful search of available dosimetry data found no record of exposure for the Veteran. In short, the Board finds that the most probative evidence is against a finding that the Veteran participated in atmospheric nuclear testing during his active duty service. Thus, exposure to radiation has not been conceded because there is no evidence, beyond the Veteran's assertions, that he was exposed to radiation during service. Thus, the Veteran does not qualify as a radiation-exposed veteran involved in radiation-risk activity and the presumption of service connection for specific diseases for radiation exposed veterans does not apply. Therefore, any further discussion with regard to service connection based on exposure to radiation is not warranted. See 38 U.S.C. § 1112(c); 38 C.F.R. §§ 3.309(d), 3.311; Wandel v. West, 11 Vet. App. 200, 205 (1998). Turning to the question of service connection on a direct basis, the Board notes that the Veteran's service treatment records (STRs) are not available and are presumed to have been destroyed in a fire at the National Personnel Records Center (NPRC) in 1973. In this case, the RO attempted to obtain additional records by alternative means. In March 2012, the RO advised the Veteran that his STRs may have been destroyed in a fire and requested that he submit any relevant documents in his possession. In a reply dated April 2012, the Veteran stated that he did not receive treatment for cancer in service, but that he was exposed to radiation and his cancer is related to that exposure. The Board acknowledges its heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision" when serviced records are lost or missing. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (2005) (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). The Board notes that the Veteran's service personnel record (SPRs) are of record, as well as his enlistment physical examination received with the SPRs. Following service, VA treatment records contain surgical pathology reports which show that in April 1995, the Veteran was found to have basal cell carcinoma of the mid line inferior back, completely excised. In December 2001, the Veteran was found to have basal cell carcinoma of the right shoulder. In April 2002, the Veteran was found to have basal cell carcinoma of the right side of the nose. In June 2003, the Veteran was found to have basal cell carcinoma of the right posterior auricle. In April 2006, the Veteran was found to have basal cell carcinoma of the left preauricular area and right upper back. In June 2006, the Veteran was found to have squamous cell carcinoma of the upper back, which in November 2006 was confirmed to also have features of basal cell carcinoma. Thus, there is no competent evidence of a malignant tumor in service or within one year following discharge from service and the Veteran does not contend such. Moreover, the Veteran stated that he did not receive treatment for skin cancer in service and he does not contend that his skin cancer is associated with service for reasons other than radiation exposure. The Board acknowledges that no medical examination or opinion was obtained in regards to the claims for service connection. However, as there is no competent and credible evidence of skin cancer in service or competent evidence suggesting a relationship between the Veteran's squamous cell carcinoma or basal cell carcinoma and service, no examination or opinion is warranted. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (noting where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible a VA examination is not required). Therefore, the Board finds that VA examination and/or opinion is not necessary to decide the claims. In summary, there is no competent and probative evidence of record that demonstrates the Veteran was exposed to ionizing radiation during service, there is no competent evidence of skin cancer in service or within one year following discharge from service, and there is no competent evidence of record linking his skin cancer to service. Accordingly, the preponderance of the evidence is against the claims and service connection is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. ORDER Entitlement to service connection for residuals of squamous cell carcinoma is denied. Entitlement to service connection for residuals of basal cell carcinoma is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs