Citation Nr: 1803263 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-11 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for basal cell carcinoma, to include as due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from August 1978 to July 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 decision of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board acknowledges the Veteran has submitted a timely substantive appeal to the issue of entitlement to service connection for posttraumatic stress disorder. However, as the issue has not been certified to the Board, it is not yet within the Board's jurisdiction. As such, this issue will be adjudicated at a later time. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran was not exposed to ionizing radiation during his period of service. 2. The preponderance of the evidence shows that the Veteran's basal cell carcinoma is not related to active military service. CONCLUSION OF LAW The Veteran's basal cell carcinoma was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred. 38 U.S.C. § 1101, 1110, 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017). VA's duty to notify was satisfied by letters dated in April 2011 and May 2011. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran's service treatment and personnel records as well as post-service VA and private medical records are within the electronic claims file. The Board recognizes that the Veteran has not been afforded a VA examination in this case. However, no examinations are necessary to decide this claim. 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. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). With respect to the third factor above, the Court 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. In this case, no examination is necessary in order to adjudicate the claim because there is no evidence to satisfy the McLendon criteria discussed above. While the record does reflect a diagnosis of a current disability, there is no credible evidence of an in-service disease or injury or evidence suggesting that these conditions may somehow be related to military service. Therefore, a medical examination would serve no useful purpose in this case, since the requirement of an in-service disease or injury to establish a service connection claim cannot be met upon additional examination. The Veteran was not prejudiced by the lack of VA examination. Given the foregoing, the Board finds that VA has substantially complied with the duty to obtain the requisite information necessary to make a decision on the Veteran's increased rating claim decided herein. In addition, neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. The Merits of the Claim Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 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 disorder 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 § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303 (b) (2017). 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 ninety 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 (2017). Additionally, service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed Veterans. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). Second, "radiogenic diseases" such as lung cancer may be service connected 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. First, a "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309 (d)(3) as a veteran who, while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean on site 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 in Japan (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), (ii). Diseases specific to radiation-exposed veterans are the following: leukemia (other than chronic lymphocytic leukemia), thyroid cancer, breast cancer, cancer of the pharynx, esophageal cancer, stomach cancer, cancer of the small intestine, pancreatic cancer, multiple myeloma; lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), salivary gland cancer, cancer of the urinary tract, bronchio-alveolar carcinoma, bone cancer, brain cancer, colon cancer, lung cancer, and ovarian cancer. 38 C.F.R. § 3.309 (d)(2). Evidence which may be considered in rebuttal of service incurrence of a listed disease listed will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. The expression "affirmative evidence to the contrary" will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. 38 C.F.R. § 3.307 (d). Second, 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. 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. 38 C.F.R. § 3.311 (a)(2)(iii). Pursuant to 38 C.F.R. § 3.311, "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes the following: all forms of leukemia, except chronic lymphocytic leukemia; thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311 (b)(2)(i)-(xxiv). Section 3.311(b)(5) requires that bone cancer become manifest within 30 years after exposure, posterior subcapsular cataracts become manifest within 6 months or more after exposure, leukemia become manifest at any time after exposure, and that other diseases specified in section 3.311(b)(2) become manifest 5 years or more after exposure. Third, and notwithstanding the above, the Court has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994)). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not always accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his skin cancer, specifically basal cell carcinoma, is related to exposure to ionizing radiation during his military service. As noted above, the evidence must show that the Veteran has a current diagnosis of the claimed disabilities in order to receive service connection. Post-service treatment records indicate the Veteran was diagnosed, and treated for, basal cell carcinoma. Thus, the Veteran has a current diagnosis. Pertaining to the question of entitlement to presumptive service connection based on exposure to ionizing radiation, diseases specific to radiation-exposed veterans, including certain forms of cancers, that are listed under 38 C.F.R. § 3.309 (d)(2) will be presumed to have been incurred in active service if the veteran participated in a radiation risk activity. Skin cancer (basal cell carcinoma) is not listed under 38 C.F.R. § 3.309 (d) as a disease specific to a radiation exposed veteran. Furthermore, the Veteran is not considered a "radiation-exposed veteran" as defined under 38 C.F.R. § 3.309 (d)(3). In this regard, as stated above, a "radiation-exposed veteran is a veteran who participated in a radiation-risk activity while serving on active duty or on active duty for training or inactive duty training. 38 C.F.R. § 3.309 (d)(3). There are a number of activities defined as a "radiation-risk activity" including, onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309 (d)(3). 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. The were no atmospheric nuclear weapons testing conducted by the United States during the Veteran's period of service from August 1978 to July 1981. See § 3.309(d)(v)(A)-(S). Therefore, service connection pursuant to the regulatory presumption of 38 C.F.R. § 3.309 (d) is not warranted. The evidence of record shows that the Veteran was not otherwise exposed to ionizing radiation during his military service. The Veteran indicated in an October 2012 Radiation Risk Activity Information Sheet that he was exposed to radiation at Fort Redleg, Germany, as a Pershing Material Specialist. His duties included warhead inspections during arms reductions and during combat alert status. His duties were in the open and indoors in buildings but that no explosions occurred. He stated that film badges were not issued as they were not available. The Veteran further reported in a statement received by the VA in October 2012 that the inspection of warheads required the removal of the cover of the back end and physically inserting his torso into the interior of the conical shaped housing assembly. He also stated he suffered a slight "sunburn" to his face and forearms as a result. He stated he never went on sick call as the sunburns "went away after about [one] week." His DD Form 214 shows that his military occupational specialty was Pershing Electrical Material Specialist. In addition, the Veteran's service records includes a Personnel Reliability Program Record Identifier which indicates "this individual functions in a nuclear duty position." According to a February 2013 letter from the Chief of the U.S. Army Dosimetry Center, following research of the Veteran's files for records of exposure to ionizing radiation, they were unable to locate any records for him. In January 2014, the VA made a formal finding on the unavailability of radiation exposure documents from the U.S. Army Medical Command. Accordingly, the evidence of record does not support the Veteran's contention that he was exposed to ionizing radiation in service. Therefore, service connection for a skin cancer is not warranted on the basis of exposure to ionizing radiation. Notwithstanding the above, as previously stated, the fact that the Veteran may not meet the requirements of a presumptive regulation does not preclude him from establishing, in the alternative, service connection by way of proof of actual direct causation. After a careful review of the record, the Board finds that the medical records do not show that the Veteran incurred skin cancer during service or incurred skin cancer to a compensable degree within the first year of discharge from service. See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309; Pond, 12 Vet. App. at 346. The Veteran's service treatment records reveal that the Veteran did not receive treatment for or a diagnosis of basal cell carcinoma during active military service. The Veteran elected to forego a Separation examination in July 1981. According to an April 2000 letter from Dr. D.H. Meirson, the Veteran's private dermatologist, to the Employee Standards Administration, Office of Workers Compensation Programs in Florida, the Veteran's post-service employment as a letter carrier caused "a great deal of sun exposure. [The Veteran's] skin cancer and pre skin cancers are causatively related to sun exposure." Furthermore, a December 2000 letter from Dr. Meirson, to the U.S. Department of Labor's Division of Federal Employees Compensation, the following was stated: Prolonged solar radiation is a large contributing factor in the development of basal cell carcinomas. [The Veteran's] prolonged solar radiation exposure of 17 years of approximately six hours a day as well as his Fitzpatrick Skin Type of I to II would have a large influence on the incident of skin cancer. In [patients] with basal cell carcinoma, the causal relationship is often the past history of solar radiation. In [the Veteran's] case, solar radiation directly influenced the incidence of skin cancer. Here, although the Veteran report experiencing sunburn for one week during service which resolved prior to separation from service, Dr. Meirson clearly determined that the Veteran's basal cell carcinoma resulted from his prolonged solar radiation exposure as a letter carrier and his skin type. Consequently, based on this determination there is no indication that the Veteran's military service, even assuming arguendo that the Veteran was exposed to ionizing radiation, caused his basal cell carcinoma. Furthermore, continuity of symptomatology has not been shown. The Veteran did not have symptoms, or a diagnosis of basal cell carcinoma within one year of service. The first evidence of basal cell carcinoma was in a December 1995 biopsy, approximately 14 years after active military service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, the preponderance of the evidence is against a finding that these disabilities manifested in service to an extent sufficient to identify the disease and allow for sufficient observation to establish chronicity. 38 C.F.R. § 3.303(b). Therefore, service connection based on continuity of symptomatology is not warranted. The Board also acknowledges the Veteran's contentions that his current basal cell carcinoma is related to service, specifically exposure to ionizing radiation. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness is competent to prove that claimant exhibited certain symptoms at particular time following service). However, the Veteran is not competent to opine on the diagnosis or etiology of his disability. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In this case, the etiology of a basal cell carcinoma is a complex medical question that is not within the competence of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Furthermore, there is no competent medical opinion of record that indicates the Veteran's basal cell carcinoma is related to the Veteran's active military service. In arriving at this conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the preponderance of the evidence is against a finding of entitlement to service connection for basal cell carcinoma; the claim is therefore denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 3.312; Gilbert, 1 Vet. App. at 58 (if the Board rules against a veteran in a case where there are "two permissible views" of the evidence, the Board must provide an "adequate statement of [its] reasons or bases" in support of its determination that the veteran is not entitled to the benefit of the doubt) (internal quotations omitted). ORDER Entitlement to service connection for basal cell carcinoma, to include as due to exposure to ionizing radiation, is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs