Citation Nr: 21075894 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 19-32 694 DATE: December 21, 2021 ORDER Entitlement to service connection for skin cancer, to include as due to radiation exposure. FINDINGS OF FACT 1. The Veteran was exposed to ionizing radiation in service. 2. The Veteran developed skin cancer as a result of ionizing radiation in service. CONCLUSION OF LAW The criteria for service connection for skin cancer have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1958 to April 1966. In November 2020, the Veteran presented testimony before the undersigned Veterans Law Judge of the Board during a virtual hearing. In a November 2021 Correspondence from the Veteran's attorney, it was noted the Veteran has been scheduled for an additional hearing on the issue of entitlement to service connection for skin cancer. However, the Veteran, through his attorney, is withdrawing that hearing. As such, the Board may proceed with adjudication of the appeal. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). 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). Section 3.311 provides special procedures for VA to follow for those veterans seeking compensation for diseases related to exposure to radiation in service. First, it must be established that the veteran suffers from a radiogenic disease. 38 C.F.R. § 3.311 (b)(2). The disease must manifest within a specified time period; in this case, "5 years or more after exposure." 38 C.F.R. § 3.311 (b)(5)(iv). Once established, VA must obtain a dose assessment. 38 C.F.R. § 3.311 (a) ("In all claims in which it is established that a radiogenic disease first became manifest after service... and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses"). After it is determined from the dose assessment that the veteran was exposed to radiation, the RO is then required to refer the case to the Under Secretary for Benefits for further consideration. Hilkert v. West, 12 Vet. App. 145, 148 (1999) (en banc), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table); 38 C.F.R. § 3.311 (b). The Veteran asserts that he is entitled to service connection for skin cancer as due to ionizing radiation exposure during service. He has been diagnosed with multiple areas of skin cancer to include his bilateral upper extremities, back, forehead, and legs, dating back to 1995. See March 2018 VA Scars Disability Benefits Questionnaire (DBQ) and private treatment records. Regarding radiation exposure during service, it is conceded that the Veteran was exposed to radiation during service. Here, his DD Form 1141, Record of Occupational Exposure to Ionizing Radiation, had a noted date of September 30, 1957, Place of Exposure was 1503648, and DT-60 Reading of 7. See September 2018 VA Memorandum. The Veteran may also establish service connection for his skin cancer under 38 C.F.R. § 3.311, provided that the disability in question is a "radiogenic disease." Review of the diseases listed under 38 C.F.R. § 3.311 (b)(2) does include the Veteran's skin cancer and it became manifest five years or more after any such radiation exposure, and thus 38 C.F.R. § 3.311 and the special provisions therein are applicable to the Veteran's case. 38 C.F.R. § 3.311 (b)(2)(xxiii). After a review of the record, the Board finds that the evidence shows that is at least in equipoise as to whether the Veteran's skin cancer is related to his conceded ionizing radiation exposure during service. The evidence against the Veteran's claim includes memorandums from the Director, Compensation Service, dated in September 2018; and, the Deputy Chief Consultant, Post Deployment Health Service, also dated in September 2018. These memorandums both concluded against finding the Veteran's diagnosed skin cancer is attributable to his in-service exposure to radiation based on the level of exposure. The evidence submitted in favor of the Veteran includes the findings of the April 2018 VA medical opinion, which concluded that it was at least as likely as not that the Veteran's skin cancer is due to his conceded radiation exposure during service. The examiner noted research studies conducted by the International Agency for Research on Cancer (IARC), which is part of the World Health Organization (WHO). Based on the conflicting evidence above, Board finds that there is at least equipoise as to whether the Veteran's skin cancer is due to his conceded exposure to ionizing radiation during service. Service connection is warranted. 38 C.F.R. § 3.102. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.