Citation Nr: 21000935 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-19 313 DATE: January 6, 2021 ORDER Entitlement to service connection for melanoma skin cancer is remanded. REASONS AND BASES REMAND The Veteran served in the Merchant Marines from July 1945 to August 1945 and in the United States Army from August 1945 to December 1946, from November 1948 to December 1949, and from September 1950 to July 1951. These matters come before the Board of Veteran’s Appeals (Board) on appeal from February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board video conference hearing in April 2019 before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The Board issued a remand order July 2019 for an addendum opinion. The Board finds that there has not been substantial compliance with the July 2019 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran passed away in May 2020 from ischemic heart disease and diabetes mellitus, during the pendency of the appeal. See June 2020 Death Certificate. In June 2020 the Veteran’s surviving spouse filed VA Form 21-0847 – Request for Substitution of Claimant Upon Death of Claimant and the claim is properly before the Board. Entitlement to service connection for melanoma skin cancer In July 2014, the Veteran submitted a claim of service connection for melanoma skin cancer. See July 2014 VA 21-526EZ. the Veteran has contended that his melanoma skin cancer was caused by radiation exposure in service. See June 2019 Buddy/Lay Statement (mislabeled). In making this claim, the Veteran provided private medical treatment records showing a diagnosis of skin cancer during the period of appeal. See July 2014 Medical Treatment Record – Non -Government Facility, pp. 1, 16, 33. A review of the Veteran’s service treatment records (STRs) shows no claim, treatment or diagnosis of melanoma skin cancer. See September 2014 STR-Medical. A review of the Veteran’s post-service medical treatment records shows that melanoma cancer of the left arm was diagnosed in 2006 and multiple facial skin cancers were diagnosed in 2009. See July 2019 CAPRI, p. 1164. In the Veteran’s timely notice of disagreement (NOD) to his original denial, he stated that his skin cancer was first diagnosed in 1950, though he further stated that the medical records which would prove this could not be provided. See March 2015 NOD. The Board finds that the first element of service connection, a current disability, has been met, though the evidence is not sufficient to find that the Veteran’s skin cancer was diagnosed either in service or within a year of separation. The Veteran further explained his theory of the causation of his skin cancer. As per the Veteran’s April 2019 Board Hearing testimony, the Veteran has stated that he was exposed to radiation while serving aboard the S.S. Kelso Victory, moored or anchored at Sasebo, Japan in October 1945 to November 1945. The Veteran has compared this exposure to that of the United States occupation forces in Hiroshima or Nagasaki, Japan. The Veteran further testified that he regularly heard Geiger counters going off, was required to regularly take radiation showers and received a radiation badge. See April 2019 Hearing Transcript. A review of the Veteran’s military personnel and treatment records do not show that he was monitored with radiation badge or otherwise showed occupational exposure to ionizing radiation. See April 2017 Certificate of Release or Discharge From Active Duty. However, the record does show that the Veteran was present in Sasebo Japan from October 16, 1945 to October 22, 1945. See March 2015 Military Personnel Record, p. 3. Furthermore, the record shows that from 1945 to 1948 and in 1950 the Veteran “performed regular and emergency duties, broke out and secured rigs, stowed cargo, handled lifeboats and performed other duties.” See July 2014 Military Personnel Record, p. 37. In addition, the Board acknowledges that the Veteran’s personnel records were damaged in a fire and are likely incomplete. See July 2014 Third Party Correspondence. To determine whether the Veteran was exposed to radiation while in service, VA sent an inquiry to the Defense Threat Reduction Agency. In April 2020 an interim response was received, stating “every effort will be made to handle this case expeditiously; however, records retrieval, review and analysis can take three months or longer to complete.” See May 2020 Third Party Correspondence. To date no response has been received. Although the Veteran was not present at the time of the detonation of a nuclear weapon at Nagasaki and was unlikely to have been exposed to direct radiation, Sasebo is in sufficient proximity that the area may have been affected by particulate contamination (fallout) which is consistent with the Veteran’s reporting of radiation detector alarms and possible decontamination showering. Therefore, a dose estimate is required by 38 C.F.R. § 3.311 (2019). As such, a remand is required to ensure compliance with the Board’s previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). The matter is REMANDED for the following action: 1. Develop the Veteran’s assertion that he was exposed to radiation while serving aboard the S.S. Kelso Victory from July 1945 to January 1946 while moored or anchored at Sasebo, Japan in October 1945 to November 1945. The Veteran testified that while being in the Sasebo harbor he was directed to regularly wear radiation badges, heard ongoing Geiger counters, and took radiation showers regularly. In accordance with 38 C.F.R. § 3.311(a)(2), it should be determined whether the Veteran was exposed to ionizing radiation as a part of his duties in service. If there is evidence of possible exposure to radiation or ionizing radiation is found, a dose assessment and data should be obtained from the Department of Defense. Following receipt of a dose estimate, the appellant’s claim should be forward to the VA Under Secretary for Benefits for consideration in accordance with 38C.F.R.§3.311(c) for an opinion. If more details are needed, contact the appellant to request the information. 2. When a dose estimate is received, request an addendum opinion from the October 2020 VA examiner if available, or another qualified examiner if not, regarding the determination of the nature and etiology of any melanoma, skin cancer, to include as due to ionizing radiation and whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s current skin cancer to include melanoma is caused by an in-service injury or disease, including exposure to ionizing radiation while serving aboard the S.S. Kelso Victory. Review of the entire claims file is required in the addendum opinion. The examiner must provide a complete rationale for all findings and opinions. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.