Citation Nr: 18151373 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 16-46 475 DATE: November 19, 2018 ORDER Entitlement to service connection for malignant melanoma, claimed as secondary to exposure to ionizing radiation, is denied. FINDINGS OF FACT 1. The Veteran did not participate in a radiation-risk activity during his active service. 2. There is no competent evidence of exposure to ionizing radiation. 3. The Veteran’s malignant melanoma did not have its onset in service or manifest to a compensable degree within one year of separation from service, and is not otherwise related to service, to include ionizing radiation exposure therein. CONCLUSION OF LAW The criteria for entitlement to service connection for malignant melanoma are not met. 38 U.S.C. §§ 1110; 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1952 to September 1956. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran asserts that service connection is warranted for residuals of malignant melanoma, to include as due to ionizing radiation exposure. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R.§ 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for a disability claimed to result from radiation exposure during service can be demonstrated in one of three ways. First, there are 21 types of cancer that are presumptively service connected when the claimant is a “radiation-exposed veteran” within the meaning of 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Second, 38 C.F.R. § 3.311(b) provides a list of “radiogenic diseases” that are eligible for service connection provided that certain conditions are met. Third, direct service connection can be established. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); Davis v. Brown, 10 Vet. App. 209, 211 (1997). Service connection can be granted for certain diseases, including malignant melanoma (as malignant tumors), if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. As an initial matter, post-service treatment records show a diagnosis of malignant melanoma of the forehead in June 1993. The melanoma was excised in July 1993 with skin grafting. An August 1993 pathology report revealed no diagnostic evidence of residual melanoma. In support of his claim, the Veteran submitted a photograph date stamped September 1993 showing a deep circular residual scar. In July 1994, the Veteran requested secondary reconstruction of his scalp. He underwent placement of tissue expander to the right scalp in July 1994. However, he had severe pain and was unable to tolerate complete expansion. In October 1994, he underwent removal of tissue expander of scalp and local flap advancement with partial excision of skin graft. The Veteran filed his claim in October 2013. Accordingly, the Board finds that the Veteran’s malignant melanoma was not active at the time he filed his claim or any time during the pendency of his appeal. However, resolving reasonable doubt in the Veteran’s favor, his residual scar is unlikely to have resolved. Therefore, a current disability is established. The Veteran reported that although he was stationed in Camp Pendleton, California he was taken to Camp Desert Rock, Nevada on March 11, 1955 to observe nuclear testing. See October 2013 statement; October 2014 Notice of Disagreement (NOD). In support of his claim, the Veteran submitted a self-aid and first-aid instruction pamphlet that he asserts he received at the time of the atomic test. Additionally, he submitted an undated newspaper article indicating that he participated in a recent atom bomb test at Camp Desert Rock. The Board notes that the operational period for Operation UPSHOT-KNOTHOLE, an atmospheric nuclear test conducted by the United States, was from March 1953 to June 1953. See 38 C.F.R. § 3.309(d)(3). The operational period for Operation TEAPOT was from February 1955 to June 1955. Id. In August 2014, the Defense Threat Reduction Agency (DTRA) indicated that the Veteran transferred to Fleet Marine Force Replacements, 2nd Replacement Battalion, Staging Regiment, MB, Camp Pendleton in February 1953 and embarked on board USNS General W.F. Hase (T-AP 146) in San Diego, California for transportation to Korea, where he arrived in March 1953. He served overseas in Korea and Japan until May 1954. In November 1954, he was transferred to “B” Company, 1st Infantry Battalion, Marine Corps Test Unit 1, MCB Pendleton. On March 11, 1955, the Veteran remained at Camp Pendleton as rear echelon while his unit traveled to Camp Desert Rock, Nevada. Additionally, after a search of available dosimetry data, the DTRA found no record of radiation exposure. In summary, the DTRA concluded that the historical records do not document the Veteran’s participation in U.S. atmospheric nuclear testing, as defined by VA. The Board finds that the newspaper article does not establish that the Veteran was radiation exposed and also does not contradict DTRA’s finding that he was rear echelon in March 1955. Similarly, the information pamphlets do not contradict the DTRA’s findings and are not specific to the Veteran, thereby providing no support for a finding that he was, in fact, at Camp Desert Rock in March 1955. 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 August 2014 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. DTRA 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). As noted above, the Veteran may establish service connection on a direct service connection basis. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis related to malignant melanoma of the forehead. The Veteran’s September 1952 entrance and August 1956 separation clinical evaluation noted a heavily freckled upper body, posterior and anterior. In April 1956, he complained of a rash in his crotch and was treated with ammoniated mercury. His diagnosis was changed to tinea cruris/dermatophytosis (ringworm) in May 1956. His September 1956 separation Report of Medical History is incomplete; however, he reported that he was in good health. Turning to the question of service connection on a direct basis, the Veteran’s service treatment records are silent as to complaints of or treatment for skin cancer and the initial post-service treatment for skin complaints is not until June 1993 (37 years after service), when malignant melanoma of the forehead was diagnosed. Thus, there is no competent evidence of a malignant tumor (malignant melanoma of the forehead) in service or within one year following discharge from service and the Veteran does not contend such. Moreover, the Veteran did not contend that his skin cancer was associated with service for reasons other than radiation exposure. The Board acknowledges no medical examination or opinion was obtained in connection to the Veteran’s claim. However, as there is no competent and credible evidence of skin cancer in service or competent evidence suggesting a relationship between the Veteran’s malignant melanoma of the forehead 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). Therefore, the Board finds a VA examination and/or opinion is not necessary to decide the claim. To the extent the Veteran attributes his malignant melanoma to radiation exposure in service, he does not have the requisite expertise to address a complex medical question such as the etiology of cancer. Therefore, his opinion as to the etiology of his malignant melanoma is not competent medical evidence, and is thus afforded no probative weight. 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 claim and service connection is denied. Accordingly, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Forde, Counsel