Citation Nr: 21006707 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 16-63 116 DATE: February 5, 2021 ORDER Service connection for a skin disorder, to include actinic keratosis or skin cancer, claimed as due to exposure to ionizing radiation, is denied. An increased disability rating for bilateral hearing loss in excess of 10 percent prior to September 24, 2020, and in excess of 60 percent thereafter, is denied. FINDINGS OF FACT 1. The Veteran has not had a diagnosis of skin cancer during the appeal period or recent in time to the filing of the claim, and his multiple diagnosed skin conditions are not related to service, to include exposure to ionizing radiation. 2. Prior to September 24, 2020, the Veteran had no more than Level IV hearing impairment bilaterally. 3. Since September 24, 2020, the Veteran has had no more than Level IX hearing impairment bilaterally. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disorder, to include actinic keratosis or skin cancer, claimed as due to exposure to ionizing radiation, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.311. 2. The criteria for increased disability rating for bilateral hearing loss in excess of 10 percent prior to September 24, 2020, and in excess of 60 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.85. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1961 to December 1964. This appeal proceeds from a June 2015 rating decision that denied an increased disability rating for hearing loss from 10 percent and denied service connection for actinic keratosis (claimed as skin cancer). In August 2019, the Veteran testified at a hearing via videoconference before the undersigned Veterans Law Judge. In November 2019, the Board of Veterans’ Appeals (Board) remanded the case for additional evidentiary development. In August 2020, the Veteran’s former appointed veterans’ service organization advised that it was revoking representation. The Veteran has not appointed a new representative. A December 2020 rating decision granted a 60 percent rating for hearing loss, effective September 4, 2020, which is a partial grant of the appeal. 1. Service connection for a skin disorder, to include actinic keratosis or skin cancer, claimed as due to exposure to ionizing radiation The Veteran seeks service connection for actinic keratosis and skin cancer. He asserts that they resulted from exposure to ionizing radiation through onsite participation in a test involving the atmospheric detonation of a nuclear device in 1962 while serving aboard the USS Princeton during Operation DOMINIC. Service connection for a current disability that resulted from an injury, disease, or aggravation, while in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection based on radiation exposure in service may be established in three ways. First, certain diseases will be presumptively service-connected under 38 C.F.R. § 3.309(d) if they become manifest in a “radiation-exposed” veteran, which involves certain “radiation-risk activities,” if the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. See 38 U.S.C. §§ 1112, 1113. Second, service connection may be granted under 38 C.F.R. § 3.311 where the veteran develops a “radiogenic disease” after service and contends that it is due to radiation exposure during service. This provision does not provide for presumptive service connection but, rather, requires certain procedures to be followed in the handling of such claims, as summarized below and in the prior remand. Third, direct service connection may be granted under 38 C.F.R. § 3.303(d) where the evidence establishes that the claimed disorder was incurred or aggravated due to active service, to include radiation. See Ramey v. Brown, 9 Vet. App. 40, 44-45 (1996), aff’d at 120 F.3d. 1239 (Fed. Cir. 1997); Rucker v. Brown, 10 Vet. App. 67, 71-72 (1997); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A “radiation-exposed veteran” is defined by § 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. As relevant to this case, “radiation-risk activity” is defined to include onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d)(3)(ii). Under § 3.311, a “radiogenic disease” means a disease that may be induced by ionizing radiation and includes skin cancer. 38 C.F.R. § 3.311(b)(2)(xxiv). When a claimant contends that a radiogenic disease which first became manifest after service, though not to a compensable degree within any other applicable presumptive period, is the result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose. 38 C.F.R. § 3.311(a). Except as otherwise provided, the radiogenic disease must become manifest five years or more after exposure. 38 C.F.R. § 3.311(b)(5). If these threshold requirements are met, an assessment as to the size and nature of the radiation dose must be made. 38 C.F.R. § 3.311(a)(1). In adjudicating such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In this case, as explained below, the Veteran has various current skin disabilities, but not skin cancer, and the current disorders are not shown to be related to service. The prior remand directives were at least substantially completed, and the provisions of § 3.309(d) and § 3.311 are not met. The Veteran’s service personnel records and service treatment records have been obtained, his presence at the site of an atmospheric nuclear test has been confirmed, and a dose estimate was obtained from the Defense Threat Reduction Agency (DTRA). However, the Veteran does not have a diagnosis of skin cancer, and the competent evidence does not otherwise suggest a potential radiogenic disease. Therefore, further referral to VA’s Under Secretary of Health or Under Secretary for Benefits is not required. Specifically, VA requested details and medical records concerning a diagnosis of skin cancer from the Veteran several times, including in the August 2019 Board hearing and in June 2020 and November 2020 letters upon remand. The Veteran did not identify or provide further medical records, medical or scientific evidence or articles suggest a radiogenic disease, or a further description of his condition. This included after he was notified of the October 2020 advisory opinion below. Instead, during his August 2019 Board hearing, the Veteran testified that he has actinic keratosis diagnosed by his private dermatologist, which he stated is precancerous. He believes the condition is related to ionizing radiation exposure during service because he believes all other risk factors were excluded. The Veteran asserted that actinic keratosis is an extreme form of acne and he did not have his current skin symptoms before witnessing the atomic testing. The further Veteran testified that he did not have a family history of skin problems or frequent sun exposure at work after service. He also believed his skin condition was located on his back, which faced the location of radiation exposure during service. Similarly, the Veteran asserted in his January 2016 notice of disagreement that his “actinic keratosis (skin cancer)” was related to radiation exposure during service while on the USS Princeton. He stated that he had been having problems with “skin cancer on my back” and he believed the cancer had spread to his genitals. He stated that a VA physician had provided him with Carac to help treat his cancer. The Board notes that “Carac” is a brand name for fluorouracil, noted in his records. The claims file contains internet articles concerning atomic blasts or ionizing radiation aboard the USS Princeton and Operation Dominic in 1962, but not to support the Veteran’s claim of having skin cancer or another radiogenic disease. Private dermatology treatment records from Dr. W reflect multiple diagnosed skin conditions, some of which were noted as precancerous, but no actual skin cancer diagnosis. A September 2010 record expressly noted that there was no past history of skin cancer. The Veteran was concerned about a rash that he reported having for 20 years, off and on, of scaly patches that worsened with heat and resolved with Selsun Blue but would return. Examination showed scattered red patches on multiple areas. The assessment was tinea versicolor of the arms and back, and the provider encouraged use of Nizoral shampoo. In March 2011, April 2011, and June 2011, the Veteran was treated for scaly spots on his face that were diagnosed as actinic keratosis or benign lentigo and treated with liquid nitrogen. An April 2011 record also noted a port wine stain on the crown of the head that looked benign. A June 2011 record noted that he had been treated a couple months ago for “precancers.” In November 2012, the Veteran complained of a brown scaly spot on the right shoulder, which was diagnosed as benign seborrheic keratosis. In January 2014, a private dermatology record noted that the Veteran had been using Carac on his face every morning and was having some progressively increasing pinkness and scaliness. The provider noted that this was an appropriate reaction post-Carac treatment of actinic keratoses on the face. He was advised to return in a year. A December 2014 record noted tinea versicolor on the right upper back with hypopigmented scaly patches. The history noted actinic keratoses or pre-cancers and treatment with Carac or “5FU” for pre-cancers. The Veteran was again prescribed Nizoral shampoo and advised to follow up in a year for annual evaluation. In December 2016, an annual evaluation gave a diagnosis of actinic keratosis and noted a problem history of tinea treated with prescription shampoo. The Veteran was scheduled for another annual evaluation in December 2017. VA treatment records reflect the Veteran’s reports of actinic keratosis or skin cancers, with treatment by a private dermatologist (Dr. W) and private primary care provider (Dr. J), but physical examination noted only actinic keratosis and scarring. In January 2014, the Veteran reported actinic keratosis that was treated with a cream and a history of lipomas. On physical examination, the VA provider noted scattered areas of healing actinic keratosis after “5FU” cream treatment. The medication list noted fluorouracil 0.5% cream, which is consistent with the abbreviation “5FU,” to be applied topically. The Veteran stated that he was taking a topical medication for skin cancer. A January 2015 record noted a history of skin cancer treatment by Dr. W and a history of lipomas, with several removed over the years. Physical examination reflected scattered lipomas on the bilateral upper extremities. The medication was again the same topical cream. In January 2016, the VA provider again noted a history of actinic keratosis treated by Dr. W, and the Veteran reported being diagnosed recently with a type of skin cancer on the scrotum and penis by Dr. J. He wanted to obtain service connection for this condition because he was exposed to nuclear testing. Physical examination showed no rashes or suspicious lesions, induration, “petechii,” or nodules, but the provider did note that the Veteran had scattered scarring from treatment of actinic keratosis. In a January 2017 VA treatment record, the Veteran reported seeing his private primary care provider routinely and been seen by his private dermatologist over the past few months for “skin cancer issues” or “some cancer spots” and that he would have a followup the next month. The Veteran reported being exposed to a nuclear blast during service on the USS Princeton and that he now had areas on his back that were lighter in color and did not darken with sun exposure like the rest of his skin. Physical examination showed scattered hypopigmented areas on the back and bilateral shoulders due to damaged melanocytes. The assessment and plan noted basal cell carcinoma, which is a type of skin cancer, as well as actinic keratosis and radiation exposure, and indicated that the Veteran should followup with his dermatology provider for skin cancer as he reported. These notations of skin cancers or basal cell carcinoma are clearly based on the Veteran’s report of his understanding of his condition, not a medical determination based on testing or other objective evidence. Thus, they do not establish a diagnosis of skin cancer. The private records are consistent with the Veteran’s report of treatment by his dermatologist, but there was no suggestion or diagnosis of any type of skin cancer in 2016 or otherwise, or an indication of a history of any type of skin cancer. Again, the 2010 record noted no history of skin cancer, and the dermatologist repeatedly noted only precancerous conditions in subsequent treatment records. The Veteran reported in a January 2015 statement with his claim that Dr. W diagnosed him with skin cancer in December 2014. However, those records and subsequent records are in the file and do not reflect skin cancer, only pre-cancers. Additionally, the Veteran’s private primary care records from 2006 to 2008 and from 2013 to 2017 do not reflect any diagnosis or suggestion of skin cancer. Records in July 2006 record noted that he had a phimosis, intermittent paraphimosis with painful cracking of the foreskin of the penis, which had been ongoing for several years. He had bleeding and intermittent irritation at the head of the penis with full retraction. He was scheduled for circumcision in August 2006, from which he recovered. A March 2008 record noted that he had multiple lipomas on his extremities and trunk, and a diagnosis of multiple lipomatosis. An April 2008 operative report reflects an excision of a lipoma on the left upper arm. The Veteran is competent to report the nature and timing of his observable symptoms, as well as his recollection as to what his providers told him about his diagnosis. However, he is not competent to actually provide an opinion as to the specific skin diagnosis. This is a medically complex question that requires knowledge of the dermatologic system (skin) and interpretation of the Veteran’s medical history and any required testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The medical records are more probative and outweigh the Veteran’s lay understanding as to whether he has had skin cancer, as opposed to pre-cancerous conditions, on the penis or scrotum, face, arms, back, or other areas. A VA examination or medical opinion is unnecessary to determine a current diagnosis because the available VA and private records establish the diagnoses. Concerning radiation exposure in service, the Veteran’s service personnel records confirm ath the was stationed on the USS Princeton from November 1961 to December 1964. The September 2020 DTRA response further confirmed his participation in Operation DOMINIC I in 1962 and reflected a total skin dose of 550 rem for ionizing radiation exposure. An October 2020 advisory opinion request noted a time lapse between the Veteran’s exposure in 1962 and the onset of disease in December 2016 (as in medical records) was approximately 52 years. In October 2020, the Director of Compensation Service provided an advisory opinion. The Director noted that the Veteran was diagnosed with actinic keratosis, which is not considered a “radiogenic disease” under 38 C.F.R. § 3.309(d)(2) or § 3.311(b)(2). The Veteran had not cited or submitted competent scientific or medical evidence to support his contention that the claimed condition is a radiogenic disease. The Director noted that skin cancer is considered a “radiogenic disease,” but the available medical records do not establish a diagnosis of any type of skin cancer. Although VA treatment records show that the Veteran reported a history of skin cancer, there are no records confirming a specific type of cancer, site of a lesion, or date of diagnosis. The Director also noted that the Veteran was asked to provide evidence to show a diagnosis of skin cancer but did not do so. Therefore, the three requirements under 38 C.F.R. § 3.311(b)(1) were not met, and referral of the case to Compensation Service (to include the designated Under Secretaries as noted in the Board remand) for an official opinion was not required. The Board agrees with the advisory opinion’s assessment that there is no skin cancer diagnosis or other evidence of a radiogenic disease for the Veteran’s skin. Therefore, referral and service connection are not warranted on this basis. Additionally, there is no competent evidence to suggest a direct link to service based exposure to ionizing radiation or otherwise. There is no argument or indication of treatment for skin symptoms or diagnoses during service. His December 1964 separation examination was clinically normal for the skin. The Veteran is not competent to give an opinion as to the cause of his current disorders. This is a medically complex question that requires knowledge of the dermatologic system, interpretation of his medical history and any required testing, and knowledge of the effects of ionizing radiation and other potential causes of skin disorders. The broad statements by the Veteran and his former representative as to the cause of his current disabilities are insufficient to trigger the need for a VA examination or medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters v. Shinseki, 601 F.3d 1274, 1276-77 (Fed. Cir. 2010). Moreover, the Veteran’s private primary care records also reflect a history of frequent sun exposure, such as noted in July 2013 and February 2017. Moreover, the Veteran referenced having post-service sun exposure on his back in a January 2017 VA treatment record. These reports are inconsistent with the Veteran’s suggestion during his August 2019 Board hearing that he did not have frequent sun exposure after service, which he stated in an attempt to exclude other potential risk factors for his current skin disorder. The Veteran’s reports for treatment are more probative and outweigh his subsequent reports for his VA claim, as he had an incentive to report an accurate history in order to receive proper care. Accordingly, he is not credible as to having had minimal sun exposure after service. In summary, the preponderance of the evidence is against service connection for a current skin disorder, to include actinic keratosis or skin cancer, under any reasonably raised theory. There is no reasonable doubt to be resolved in the Veteran’s favor, and the appeal is denied. 2. Increased disability rating for bilateral hearing loss in excess of 10 percent prior to September 24, 2020, and in excess of 60 percent thereafter VA received the Veteran’s claim for an increase for his bilateral hearing loss in January 2015. This disability has been rated 10 percent disabling effective since September 1, 2009, when it was reduced from the initial 80 percent rating based on an inaccurate reporting of his speech discrimination scores in March 2009. VA’s percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be awarded if there are decreases or increases in symptomatology that meet the criteria for a different rating for a distinct period. Hart v. Mansfield, 21 Vet. App. 505 (2007). This decision focuses on the evidence pertinent to the rating criteria and disability severity during the relevant period, but the Board has considered the entire record to have a full picture of the disability. See 38 C.F.R. §§ 4.1, 4.2, 4.41; Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). Effective dates should not be assigned based solely on the date of diagnosis. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead, all relevant facts should be considered to determine the date the increase in disability first manifested. DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011); see also 38 C.F.R. § 3.400. The ratings for hearing loss are assigned through a mechanical application of the rating schedule to numeric designations that are assigned based on the results of audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Disability ratings for hearing loss are assigned based on the results of a controlled speech discrimination (Maryland CNC) test combined with the results of pure tone audiometry tests conducted by a state-licensed audiologist without the use of hearing aids. A Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. See 38 C.F.R. §§ 4.85, 4.86. First, a Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average pure tone threshold (the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four). After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. The Roman numeral designation for hearing impairment may be determined based only on the pure tone threshold average using Table VIA if the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. Table VIA may also be used where there is an exceptional pattern of hearing impairment, defined as where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or where the pure tone threshold at 1000 Hertz is 30 decibels or less and the pure tone threshold at 2000 Hertz is 70 decibels or more. Where such an exceptional pattern is shown, a Roman numeral designation for hearing impairment may be ascertained using either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. §§ 4.85 (c), 4.86. In this case, a VA treatment record in 2015 noted gradual hearing loss for several years. In February 2015, the Veteran refused an appointment for a new hearing examination for new hearing aids, stating that he only wanted an increase in service connection. During the June 2015 VA examination, testing showed right ear pure tones of 45 decibels at 1000 Hertz, 55 decibels at 2000 Hertz, 75 decibels at 3000 Hertz, and 85 decibels at 4000 Hertz, for an average of 65. Speech discrimination was 82 percent. Left ear pure tones were 35 decibels at 1000 Hertz, 70 decibels at 2000 Hertz, 80 decibels at 3000 Hertz, and 85 decibels at 4000 Hertz, for an average of 68. Speech discrimination was 84 percent. Under Table VI, these results yield a designation of Level IV in the right ear and Level III in the left ear. There was no exceptional hearing pattern. Applying Table VII, combining Level III for the better ear with Level IV for the worse ear results in a 10 percent rating. A September 2015 VA treatment record noted that the Veteran had been seen in the audiology clinic, and new hearing aid devices were recommended. However, there is no indication of an additional or worsened audiometric evaluation at that time. At his August 2019 Board hearing, the Veteran testified that he believed his hearing loss had worsened. He also submitted an August 1, 2019, private audiological assessment that indicates a possible worsening since the 2015 VA examination. The private evaluation dated August 1, 2019, summarizes pure tone average as 68 percent in the right ear and 67 percent in the left ear, but the individual readings are largely illegible. The December 2020 supplemental statement of the case (SSOC) noted that this evaluation appeared to show more severe hearing loss at the 2000 Hertz and 4000 Hertz levels than the prior VA examination. However, those audiometric results were inadequate for VA rating purposes because they did not contain speech discrimination scores using the Maryland CNC test. Instead, the report specifies that the speech scores of 76 percent bilaterally were based on the NU-6 test. Moreover, even if these results were used, they would not support a higher rating. Applying Table VI, combining the noted pure tone average with the noted speech score would yield a Level IV designation bilaterally. Under Table VII, combining Level IV with Level IV would results in a 10 percent rating. During the September 24, 2020, VA examination, testing showed right ear pure tones of 50 decibels at 1000 Hertz, 75 decibels at 2000 Hertz, 85 decibels at 3000 Hertz, and 95 decibels at 4000 Hertz, for an average of 76. Speech discrimination was 40 percent. Left ear pure tones were 50 decibels at 1000 Hertz, 85 decibels at 2000 Hertz, 85 decibels at 3000 Hertz, and 90 decibels at 4000 Hertz, for an average of 78. Speech discrimination was 44 percent. Under Table VI, these results yield a designation of Level IX in the both the right and left ears. Applying Table VII, combining Level IX with Level IX results in a 60 percent rating. Accordingly, although the Veteran testified to noticing increased problems during the August 2019 Board hearing, he is not competent to identify when there was an actual measurable hearing loss, as required for a higher rating under § 4.85. Additionally, contemporaneous testing at that time did not support a higher rating. Therefore, there was no factually ascertainable increase in the severity of disability. Instead, the evidence first supports a higher rating as of September 24, 2020. See 38 C.F.R. § 3.400; Swain , 27 Vet. App. at 224; DeLisio, 25 Vet. App. at 58. The Veteran has generally described functional loss of difficulty hearing, communicating, and understanding speech or conversations due to his hearing loss. He has a separate 10 percent rating for tinnitus. In a January 2015 statement with his claim, the Veteran reported difficulty hearing and understanding conversations and having a ringing or cricket sound in the ears (which is tinnitus). During his August 2019 Board hearing, he further described how he believes his hearing under objective testing environments is better than under real-world environments. For this reason, he believes the test results do not adequate address his hearing impairment. However, VA regulations require objective testing as set forth above, and these types of problems are contemplated by the schedular rating for hearing loss set forth in 38 C.F.R. § 4.85. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, another hearing test or opinion is not necessary for a fair adjudication. In summary, the manifestations of the Veteran’s bilateral hearing loss were relatively consistent throughout the staged periods on appeal, and an even higher rating is not warranted. Any increases in severity did not more nearly approximate the criteria for the next higher rating, and there is no reasonable doubt to be resolved in the Veteran’s favor. The appeal is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.