Citation Nr: 21071264 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 09-33 250 DATE: November 30, 2021 ORDER Service connection for skin cancer, to include melanoma, basal cell carcinoma and squamous cell carcinoma, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his skin cancer, to include melanoma, basal cell carcinoma and squamous cell carcinoma, is at least as likely as not related to in-service exposure to ionizing radiation. CONCLUSION OF LAW The criteria for service connection for skin cancer, to include melanoma, basal cell carcinoma and squamous cell carcinoma, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to January 1970. In June 2010, the Veteran testified at a videoconference hearing before a Veterans Law Judge. In January 2011, the Board remanded the appeal for additional development. In December 2014, the Board granted service connection for tinnitus and remanded the claims for service connection for bilateral hearing loss and skin cancer for further development. In July 2016, the agency of original jurisdiction (AOJ) granted service connection for right ear hearing loss. In March 2017, the Board advised the Veteran that the Veterans Law Judge who held the June 2010 hearing was no longer employed by the Board and informed him of his right to another hearing. In April 2017 correspondence, the Veteran declined another hearing. In May 2017, the Board denied service connection for left ear hearing loss and remanded service connection for skin cancer for further development. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. Hilkert v. West, 11 Vet. App. 284, 289 (1998). First, if a veteran exposed to radiation during active duty later develops one of the diseases listed in 38 C.F.R. § 3.309(d)(2), a rebuttable presumption of service connection arises. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. These diseases are ones in which the VA Secretary has determined that a positive association with radiation exposure exists. Second, service connection may be established if a radiation-exposed veteran develops a radiogenic disease (one that may be induced by ionizing radiation, either listed at 38 C.F.R. § 3.311(b)(2) or established by competent scientific or medical evidence to be a radiogenic disease), if the VA Under Secretary for Benefits determines that a relationship in fact exists between the disease and the veteran's exposure in service. 38 C.F.R. § 3.311. Third, service connection may be established by competent evidence establishing a medical nexus between the claimed condition and exposure to ionizing radiation during active service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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. A "radiation-risk activity" is defined to include the onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d)(ii). In the current appeal, the Veteran asserts that he developed skin cancers due to his exposure to ionizing radiation in service. He asserts that he was on a special weapons team that worked with nuclear projectiles that he had to clean with his hands with no protective gear. Private treatment records reflect diagnoses of various skin cancers, including melanoma in November 2005, squamous cell carcinoma in August 2006 and basal cell carcinoma in October 2012. The Board acknowledges the Veteran's participation on the Special Weapons team during service, which included work with nuclear projectiles. Service personnel records show that he completed a course entitled, "155mm Projectile Prefire Course," in May 1969 and that a January 1970 letter of commendation reflects his service on the Special Weapons team. (The Board observes that the Army worked with nuclear projectiles at that time.) Thus, in-service exposure to ionizing radiation is presumed. The remaining question is whether the Veteran's skin cancers are related to such exposure. In a January 2008 letter, the Army Center for Health Promotion and Preventive Medicine stated that the Army Dosimetry Center has no record of occupational exposure history for the Veteran and also explained that the fact that he was not in a monitoring program indicates that he was not expected to receive significant exposure to ionizing radiation while performing his duties. In a September 2011 medical opinion, a VA examiner stated that the medical literature suggests that exposure to ionizing radiation correlated with an elevated risk of melanoma, which suggests that people exposed to ionizing radiation may be at increased risk of developing melanoma. The examiner concluded that for now, however, no solid evidence clearly links the risk of melanoma to ionizing radiation. The examiner noted that the Veteran's melanoma is on sun-exposed skin with the highest risk occurring due to his fair skin and lifetime sun exposure. In December 2015, the Veteran submitted a statement citing to medical literature indicating a link between exposure to ionizing radiation and development of skin cancers, including melanoma, basal cell carcinoma and squamous cell carcinoma. In a July 2016 medical opinion, a VA examiner noted that the Veteran's induction examination reflects a history of severe sunburn in the past. The examiner opined that, as severe sunburn is a risk factor for skin cancer, the Veteran's melanoma, squamous cell carcinoma and basal cell carcinoma are not related to service. In an August 2016 statement, the Veteran noted that his skin cancers have been on his face, neck and head, not his back where his previous sunburn had been. In a June 2018 statement, he noted that, while he worked on a farm prior to service, he always wore a shirt and hat and that he has worked in factories since service. He also noted that his hands, face and neck were the only exposed parts while working with the nuclear projectiles in service. In a July 2020 statement, he noted that he was never in a monitoring program but other personnel on the Special Weapons team wore white suits and used respirators. Private treatment records show that the Veteran has red hair and fair skin. VA treatment records show a family history of skin cancer. A dose estimate of the Veteran's exposure to ionizing radiation in service is not of record and the Army Center for Health Promotion and Preventive Medicine commented that he must not have been expected to receive significant exposure to ionizing radiation. Nevertheless, his duties exposed him to ionizing radiation, and VA acknowledges that skin cancer is a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2). Indeed, the medical literature cited by a VA examiner and the Veteran indicates a link between ionizing radiation and skin cancer. Although the Veteran is fair-skinned with a family history of skin cancer, and VA examiners opined that his skin cancers are not due to in-service ionizing radiation exposure, the first examiner based the opinion on the lack of a clear association between ionizing radiation and skin cancer. Here, the Board reiterates that VA acknowledges skin cancer as a radiogenic disease. The second examiner based the opinion on the Veteran's pre-service history of sunburn, which the Veteran has asserted was limited to his back, not the face and neck which are the locations of his cancers. In the end, despite the Veteran's personal and family history, the Board cannot find that his in-service exposure to ionizing radiation did not at least in part contribute to the development of his skin cancers. In light of the above, and resolving reasonable doubt in the Veteran's favor, the Board finds that his skin cancer is at least as likely as not related to in-service exposure to ionizing radiation. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, service connection for skin cancer, to include melanoma, basal cell carcinoma and squamous cell carcinoma, due to exposure to ionizing radiation is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.