Citation Nr: 19166328 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 13-24 753 DATE: August 27, 2019 ORDER Entitlement to service connection for melanoma of the right flank and right shoulder as being due to ionizing radiation exposure is denied. FINDINGS OF FACT 1. The Veteran was not presumed to be exposed to ionizing radiation in Hiroshima or Nagasaki, Japan nor was he directly exposed to ionizing radiation. 2. Symptoms of melanoma were not were not shown in service, were not continuous since service, and were not shown to a compensable degree within one year of service and are not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for melanoma of the right flank and right shoulder have not been met. 38 U.S.C. §§1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1945 to July 1946. In July 2017, the Board of Veterans’ Appeals (Board) denied the claim on appeal. The Veteran appealed the July 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In March 2018, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Remand (JMR) and remanded the claim back to the Board, which was granted by the Court. The parties agreed that the Board erred when it failed to ensure that VA satisfied its duty to assist in making reasonable efforts to attempt to obtain relevant documents and failed to provide an adequate statement of reasons or bases in failing to discuss relevant evidence. Specifically, the record does not include the Veteran’s service personnel records and does not reflect that those records were requested. Further, the parties agreed that the Board’s statement of reasons and bases was inadequate because it failed to address whether VA complied with 38 C.F.R. § 3.311(a). In October 2018, the Board remanded the claim for further development. There was substantial compliance with the Board’s remand directives to decide the claim on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for melanoma of the right flank and right shoulder as being 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 military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Melanoma (as a malignant tumor) is a chronic condition listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran’s proposed theory of entitlement is one of presumptive service connection, based on an assertion of exposure to ionizing radiation in Hiroshima and Nagasaki, Japan. Service connection for a disability based on ionizing radiation exposure during service may be established in one of three ways: (1) presumptively service connected under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d) for radiation-exposed veterans, (2) directly service connected after specified development procedures are conducted under the special framework of 38 C.F.R. §3.311 if the claimed condition is a radiogenic disease, or (3) directly service connected by showing that the disease was incurred in, or aggravated by, service. 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. The term “radiation-risk activity” includes (1) on-site participation in a test involving the atmospheric detonation of a nuclear device; (2) the occupation of Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946; (3) internment as a prisoner of war of Japan during World War II resulting in an opportunity for exposure to radiation comparable to those occupying Hiroshima or Nagasaki; and (4) certain service on the grounds of a gaseous diffusion plant in Paducah, Kentucky, Portsmouth, Ohio, or at area K25 at Oak Ridge, Tennessee; or certain service on Amchitka Island, Alaska. See 38 C.F.R. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii). The term “occupation of Hiroshima or Nagasaki, Japan, by United States forces” means official military duties within 10 miles of the city limits either Hiroshima or Nagasaki, Japan.” See 38 C.F.R. § 3.309(d)(3)(vi). A veteran is entitled to special development under 38 C.F.R. § 3.311 if such veteran has a radiogenic disease as listed under 38 C.F.R. § 3.311(b)(2)(i) – (xxiv), and such disease was manifested during specified periods as defined in 38 C.F.R. § 3.311(b)(5). In all claims based on participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946, dose data will be requested from the Department of Defense. 38 C.F.R. § 3.311(a)(2)(ii). After such development, if it is determined that the Veteran was exposed to ionizing radiation and subsequently developed a radiogenic disease that manifested during the specified period, the claim should be forwarded to the Under Secretary for Benefits for consideration of the claim. The Under Secretary for Benefits, after a consideration of the factors of the case, may then request an advisory medical opinion from the Under Secretary for Health. The Veteran contends that service connection for melanoma of the right flank and right shoulder is warranted because it was incurred inservice or otherwise caused by service, to include exposure to ionizing radiation in Hiroshima and Nagasaki, Japan. Private medical records show a diagnosis of melanoma of the right flank in April 2004 and of the right shoulder in June 2004. An April 2004 private medical record reflects that the Veteran had the right flank melanoma excised and a June 2004 private medical record indicates that the melanoma was re-excised. Following the procedures, the Veteran was reported to have had good healing on the re-excision of the melanoma in situ. A pathology examination showed that all margins were clear and no residual melanoma was found. The melanoma in the right shoulder was also excised as shown in a June 2004 private medical record. The physician stated that the excision on the back (right posterior shoulder) was examined and that it looked to be healing fine. Subsequent private medical records including October 2004 April 2005, January 2005, November 2005, January 2006, May 2006, November 2006, April 2007, October 2007, March 2008, December 2008, April 2009, and November 2009 indicate that the Veteran had two melanomas in situ surgeries and that both of these sites (right flank and right shoulder) were inspected and that there were no signs of recurrence. Many of these private medical records reflect that physical examinations of the entire body revealed seborrheic keratosis and/or actinic keratosis, which were frozen off when discovered, but did not reveal any other premalignant or malignant lesions. Private medical records as recent as November 2009, over five years following the diagnoses of melanoma and post excision, indicate that the Veteran did not have any recurrence of melanoma. That fact notwithstanding, the Board has considered the Veteran’s contention that he was exposed to radiation while serving on the U.S.S. Rotanin (AK 108) at Nagasaki and Hiroshima, Japan. As a preliminary matter, a Personnel Information Exchange Systems (PIES) request was made in May 2019 for the Veteran’s complete medical and dental record (service treatment records) and his entire personnel file at the National Personnel Records Center (NPRC). All available personnel and service treatment records were associated with the claims file in July 2019. In May 2019, the Veteran’s history of service-incurred occupational exposure to ionizing radiation was requested. In June 2019, the Department of the Navy, Naval Dosimetry Center, indicated that a review of their exposure registry by name, command, and social security number revealed no reports of occupational exposure to ionizing radiation pertaining to the Veteran and that the information provided reflects the data in the Naval Exposure Registry. It is also noted that the official exposure record is maintained in the individual’s medical record and that it would be prudent to compare that record with the report. The Board has reviewed the Veteran’s personnel and service treatment records and finds no evidence that the Veteran was exposed to any ionizing radiation and no DD 1141, Record of Exposure to Ionizing Radiation, is present. A July 2010 letter from the Defense Threat Reduction Agency (DTRA) contained historical service data concerning the Veteran’s service from September 1945 to July 1946. The Veteran reported aboard the U.S.S Rotanin in September 1945 and was detached and reassigned to Commandant, 12th Naval District, San Francisco, in April 1946. DTRA indicates that in September 1945, the U.S.S. Rotanin departed the United States and arrived at Tokyo Bay, Japan (approximately 420 miles from Hiroshima and 595 miles from Nagasaki) in November 1945. The ship remained in the vicinity of Tokyo for a few days, where it departed for Korea, Okinawa, and the Philippines, before returning to the United States. The ship arrived at San Pedro, California, in January 1946 and did not depart the United States again and was decommissioned in April 1946. The DTRA concluded that the historical records do not document the Veteran’s presence with VA-defined American occupation forces or in the vicinity of Hiroshima or Nagasaki, Japan, during the VA-defined occupation period. The Veteran proffered a history of the U.S.S. Rotanin from the U.S. Navy’s website. The proffered evidence supports the findings from DTRA, indicating that the U.S.S. Rotanin departed for Korea and Okinawa in October 1945 and returned to San Francisco, California, in February 1946, where it was ultimately decommissioned in April 1946. The U.S. Navy’s website history also does not show that the U.S.S. Rotanin visited Hiroshima or Nagasaki, Japan. For VA purposes, occupation of Hiroshima or Nagasaki, Japan, by United States forces means official military duties within 10 miles of the city limits either Hiroshima or Nagasaki, Japan. See 38 C.F.R. § 3.309 (d)(3)(vi). As the DTRA concluded that the Veteran’s ship was at Tokyo Bay, Japan, which is approximately 420 miles from Hiroshima and 595 miles from Nagasaki and much further 10 miles of the city limits, the Veteran is not considered to have performed or supported military occupation in Hiroshima or Nagasaki, Japan. The Veteran has asserted that his service aboard the U.S.S. Rotanin has been verified, including in the August 2013 substantive appeal (VA Form 9), which is confirmed above. However, the Veteran’s contentions that the ship made port in Nagasaki, Japan, or that he wet ashore at both Hiroshima and Nagasaki, Japan, several times for a full day at a time, has not been confirmed. In July 2010 and June 2019, the DTRA and Naval Dosimetry Center concluded that the historical records do not document the Veteran’s participation in the American occupation of Hiroshima or Nagasaki, Japan. As such, no dose data would be available. VA has made reasonable efforts to obtain the Veteran’s military personnel records and service treatment records and all such records are located in the Veteran’s claims file. All of these records were negative for DD 1141’s and radiation exposure of any kind. There is no evidence that a DD 1141 is missing from the record. Thus, a presumption of ionizing radiation exposure is not appropriate and actual exposure has not been shown, and the claim need not be forwarded to the Under Secretary for Benefits for consideration of the claim pursuant to 38 C.F.R. § 3.311(a). Given the Veteran’s initial diagnosis of melanoma of the right flank and right shoulder approximately 58 years after separation from service, and no record of treatment or diagnosis for a related skin disorder in service, the Board finds that the Veteran’s melanoma of the right flank and right shoulder was not shown in service, and did not manifest to a degree of 10 percent disabling or more within one year from his July 1946 separation from service. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Therefore, the Veteran does not meet the presumption of service connection for melanoma of the right flank and right shoulder based on chronicity. The Board has also considered whether service connection is warranted on a direct basis. The Veteran does not contend other in-service injuries or events, which may have caused the melanoma, and it is not reflected in the service treatment records. Moreover, it should be noted that the Veteran’s physician indicated that the Veteran had extensive sun exposure in a June 2004 private medical record, which tends to establish that the melanoma is due to post-service sun exposure. Accordingly, service connection on a direct basis is not warranted. The preponderance of the evidence is against the claim of service connection for melanoma of the right flank and right shoulder, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cheng, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.