Citation Nr: 18148508 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-43 474 DATE: November 7, 2018 ORDER Entitlement to service connection for residuals of skin cancer is denied. FINDINGS OF FACT 1. The Veteran served as a missile technician aboard USS Alexander Hamilton and USS John Marshall and was exposed to ionizing radiation. 2. The Veteran was exposed to a total of 01.395 rem. 3. After service the Veteran developed skin cancer, which was first diagnosed in 2008. 4. It is less likely than not that the Veteran’s skin cancer is due to or the result of his minimal in-service exposure to ionizing radiation. CONCLUSION OF LAW The criteria for service connection for residuals of skin cancer, to include as a result of in-service radiation exposure, are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107(b) (2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1978 to January 1984. 1. Entitlement to service connection for residuals of skin cancer The Veteran contends that his skin cancer was caused by exposure to ionizing radiation due to maintaining nuclear missiles as a missile technician. See November 2015 VA Form 21-4138, Statement in Support of Claim. For claims based on alleged exposure to ionizing radiation, service connection can be awarded on three different legal bases. The first basis is a presumptive basis for diseases specific to radiation exposed veterans under 38 C.F.R. § 3.309(d). The second basis is based on exposure to ionizing radiation with the subsequent development of a radiogenic disease under 38 C.F.R. § 3.311. Finally, the Veteran is entitled to service connection if he can establish that a disability warrants service connection as defined by the general laws and regulations governing VA compensation entitlement-that is, on a direct or presumptive basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As to service connection generally, establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. 38 U.S.C. § 1131; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309(a)(and not merely diseases which are “medically chronic”), including cancer, if the chronicity is either shown as such in service which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word ‘chronic’), or manifests to 10 percent or more within one year of service discharge (under § 3.307). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, 38 C.F.R. § 3.303(b), but the use of continuity of symptoms is limited to only those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. The presumption may be rebutted by affirmative evidence of intercurrent injury or disease which is a recognized cause of a chronic disability. 38 U.S.C. §§ 1101, 1112, 1113 (2002); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In some circumstances lay evidence may establish a medical diagnosis, causation or etiology, i.e., when a layperson (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (overruling broad holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007) that competent medical evidence is required when the determinative issue is either medical etiology or medical diagnosis); see also King v. Shinseki, 700 F.3d 1399 (Fed. Cir. 2012). Mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As to the statutory presumptions, there are specific diseases that may be presumptively service connected if manifest in a radiation-exposed veteran. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). A “radiation-exposed” veteran is one who participated in a radiation-risk activity. A “radiation-risk activity” includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Skin cancer is among the 21 types of cancer potentially entitled to presumptive service connection under 38 C.F.R. § 3.309(d)(2) for a radiation exposed veteran, which requires that the veteran have engaged in a radiation-risk activity. However, the Veteran is not a radiation-exposed veteran within the definition of the 38 C.F.R. § 3.309(d)(3)(ii)(A), because he was not involved in an atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. Regardless, however, of whether service connection is warranted on a presumptive basis, service connection can be pursued under 38 C.F.R. § 3.311 on the basis of exposure to ionizing radiation and the subsequent development of a radiogenic disease. 38 C.F.R. § 3.311. When there is evidence that a veteran has a radiogenic disease, 38 C.F.R. § 3.311 sets out specific requirements for the development of evidence, one of which is the requirement that the RO obtain a radiation dose estimate from the Department of Defense and refer the claim to the VA Under Secretary for Benefits. 38 C.F.R. § 3.311(a)(2), (b). As to other “radiogenic” diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2), found five years or more after service in an ionizing radiation-exposed Veteran may also be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service. Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311(b)(4). When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311 (c). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. §§ 3.311(b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is “at least as likely as not” that the disease resulted from in-service radiation exposure or whether there is “no reasonable possibility” that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). 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). 38 C.F.R. § 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 § 3.311(b)(2) become manifest 5 years or more after exposure. The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant’s claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran’s service treatment records (STRs) are negative for skin cancer. The Veteran’s DD 1141, Record of Occupational Exposure to Ionizing Radiation reflects that he had such exposure from June 1979 to March 1983 aboard the USS John Marshall SSBN-611 and the USS Alexander Hamilton SSBN-617. The Veteran’s DD 214 confirms that his Military Occupational Specialty (MOS) was a missile and missile check-out technician for the Poseidon SSBN and Polaris SSBN. The Veteran’s post-service private treatment records confirm the Veteran was diagnosed with right ear basal cell carcinoma (BCC) which was excised in January 2008. See Gerald Champion Regional Medical Center records. The treatment record also indicated the Veteran had prior BCCs removed from his back, neck, and left side of the nose. In June 2014 a private physician, F.A., MD of the Internal Medicine Specialists of Alamogordo, provided a letter stating that the Veteran “has had numerous skin cancers, specifically Basal Cell Carcinoma on his scalp, ears, nose, shoulders, and back.” See June 2014 Letter from Dr. F.A. He opined that “[t]here are many reasons for that, but his previous exposure to radiation during his service in the Navy might be the strongest reason for these numerous skin cancers.” Id. In a May 2015 report from the Naval Dosimetry Center stated that the Veteran had been exposed to ionizing radiation from May 1979 to October 1983 to two types of radiation including 00.179 rem of Phonton and 01.358 of Neutron radiation. In June 2015 the Director, Compensation Service forwarded the Veteran’s claim for review by the Under Secretary of Health pursuant to 38 C.F.R. § 3.311. See June 2015 VA Memorandum. In response, a July 2015 memorandum from The Director of the Post 9/11 Era Environmental Health Program confirmed the Veteran’s exposure to radiation as stated above and noted that in rendering advisory medical opinions for claims regarding occupational exposure to ionizing radiation the following citation had been used: The Health Physics Society in their position statement PS010-2, Radiation Risk in Perspective states that “in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against a quantitative estimate 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.” Exposure “below 5-10 rem (which includes occupational and environmental exposures), risks of health effects are either too small to be observed or are nonexistent.” The Director of the Post 9/11 Era Environmental Health Program opined that it was “unlikely that the Veteran’s skin cancers (basal and/or squamous cell carcinoma) can be attributed to radiation exposure while in military service” because his “total occupational radiation dose did not exceed 5 rem in one year, or 10 rem in a lifetime.” In a July 2015 memorandum, the VA Director of Compensation Services noted review of the record including the opinion of the Director of the Post 9/11 Era Environmental Health Program. The memorandum also noted that the Veteran was 20 years old when he was exposed to ionizing radiation and was diagnosed with skin cancer 28 years after such exposure. The Director opined that “there was no reasonable possibility that the Veteran’s skin cancer was the result of exposure to ionizing radiation.” See July 2015 VA Memorandum. In a November 2015 lay statement, the Veteran stated that he “accumulated a radiation dose of 1.5 rem of low level ionizing radiation” as a result of maintaining the Polaris and Poseidon nuclear missiles. See November 2015 VA Form 21-4138, Statement in Support of Claim. In his substantive appeal filed in August 2016, the Veteran argued that the denial of his claim was incorrect because “chronic radiation exposure can take many years to manifest itself.” See VA Form 9. The Veteran also attached an excerpt from course materials of United States Airforce regarding The Effects of Chronic Radiation exposure, which stated that “chronic radiation exposure is defined as a low dose of radiation over a long period of time.” See August 2016 Correspondence. The excerpt also noted that “the probability of latent health effects increases over time” and noted cancer was one of the “most important effect of low-dose radiation exposure.” Id. In a March 2017 Appellant’s Brief, the Veteran’s representative noted that the Veteran stated that “he was exposed to 1.5 Rems daily for 5 years.” The representative also noted the positive private opinion from Dr. F.A. in arguing that the Veteran was entitled to service connection for skin cancer as due to exposure to ionizing radiation. Analysis In reaching this decision, the Board acknowledges that the Veteran participated, as he has reported, in maintaining the Polaris and Poseidon Nuclear missiles. However, it is neither shown nor contended and there is virtually no evidence, lay or medical, that his skin cancer manifested during service or within one year after his January 1984 discharge from active service; nor that it was diagnosed prior to 2008. Also, the Board finds that the private medical opinion in this case is unpersuasive, for the reasons set forth below. Although skin cancer is listed as a radiogenic disease and so entitled to presumptive service connection, this presumption applies only to a radiation-exposed veteran which, in turn, is defined as one who engaged or participated in one of several listed activities, for example onsite atomic testing, occupation of Hiroshima or Nagasaki, internment as a prisoner of war, and other activities. However, maintenance of nuclear missiles, is not such a listed activity. Thus, the only means of establishing service connection is under the provisions of 38 C.F.R. § 3.311. In this regard, the Board notes that a private physician provided a statement in support of the Veteran’s appeal. Unfortunately, that statement indicates that there are many reasons for the Veteran’s skin cancer and that exposure to ionizing radiation might be the strongest reason for the Veteran’s numerous skin cancers. The interpretation of this phrase “might be the strongest reason” simply does not rise to the level of establishing, or even suggesting, that “it is as likely as not” that in-service radiation exposure caused the skin cancer(s). All in all, the Board finds this statement to be speculative. Moreover, there is nothing within the statement to suggest what evidence was reviewed in rendering the opinion and, even more significantly, there is virtually no rationale set forth. Thus, the opinion of Dr. F.A. is accorded minimal weight. On the other hand, and weighing against the claim, is the advisory opinion obtained from the VA Director of Compensation, which in turn relied on a radiation dose estimate. In substance, the dose estimate obtained logically explained the Veteran’s estimated potential radiation dose as reflected in his DD Form 1141. The total radiation dose was DDE-Phonton 00.197 rem, and DDE Neutron of 01.358 rem. Based on this the VA Director of Compensation Services found that the Veteran’s occupational exposure to ionizing radiation did not meet or exceed an annual dose estimate of 5 rem, or 10 rem in a lifetime. The VA Director relied upon substantial and convincing scientific evidence of health risks following high-dose exposure but that below 5-10 rem the risks of health effects were either too small to be observed or were nonexistent. The Director of the Post 9/11 Era Environmental Health Program opined that it was “unlikely that the Veteran’s skin cancers (basal and/or squamous cell carcinoma) can be attributed to radiation exposure while in military service.” The Director of Compensation Services also concluded that there was no reasonable possibility that the Veteran’s skin cancer was the result of exposure to ionizing radiation during service. The Board finds the conclusion of the Director of Compensation Services to be persuasive and of greater probative value than the opinion of the private physician who made no comment, statement or conclusion with respect to the relationship of the estimated amount of inservice ionizing radiation and the likelihood of developing skin cancer. The Board also considered the Veteran’s lay statements regarding the level of exposure to ionizing radiation including his representative’s brief. However, the Board finds the service department’s findings are determinative as to the extent of radiation exposure, as it has unique and specialized knowledge regarding the sources and materials involved. The Board finds that the Veteran’s lay statement are competent and credible regarding his exposure but not the extent of such exposure because exposure to ionizing radiation has been confirmed by official service records. Additionally, the VA sought and was provided a dose estimate. These facts weigh against the Veteran’s lay statements regarding the level of ionizing radiation that he was exposed to. The Board also finds that the Veteran is not competent to provide an opinion regarding the etiology of skin cancer, as he has not shown he possesses the medical expertise to render such an opinion. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). (Continued on the next page)   For these reasons, the Board finds that the preponderance of the evidence is against the Veteran’s claim and, so, there is no reasonable doubt to be resolved in his favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski,1 Vet. App. 49 (1990). Accordingly, the Veteran’s claim for service connection for residuals of skin cancer is denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel