Citation Nr: 21013230 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 11-21 239A DATE: March 9, 2021 ORDER Service connection for basal cell carcinoma (claimed as skin cancer) due to radiation exposure is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of basal cell carcinoma. 2. The Veteran was exposed to ionizing radiation during service. 3. Symptoms of basal cell carcinoma were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one-year of service separation. 4. Basal cell carcinoma was not incurred in service and is not etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for basal cell carcinoma (claimed as skin cancer) due to radiation exposure have not been met. 38 U.S.C. §§ 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the Appellant, served on active duty from January 1977 to January 1979 with a period of active duty for training (ACDUTRA) from February 1975 to June 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for basal cell carcinoma. This matter was previously before the Board in July 2016, June 2018, and January 2020. In January 2020, the Board remanded the issue on appeal for additional development, including to obtain any outstanding private and VA treatment records, and to forward the record to the VA Under Secretary for Health for preparation of a radiation dose estimate as set forth in 38 C.F.R. § 3.311. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the January 2020 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any additional contentions regarding the duties to notify or assist. Service Connection Legal Authority Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. The Veteran is currently diagnosed with basal cell carcinoma, which is considered a “malignant tumor,” recognized as one of the “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the claims for service connection for basal cell carcinoma. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Hilkert v. West, 12 Vet. App. 145 (1999); aff’d, 232 F.3d 908 (Fed. Cir. 2000). First, there are diseases that are presumptively service connected in “radiation-exposed veterans” under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during service or was aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). As directed by Combee, VA must not only determine whether a veteran has a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability is otherwise the result of in-service exposure. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation of a current disease by in-service exposure. Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d)(2) do not include the prostate cancer. Service Connection for Basal Cell Carcinoma The Veteran maintains that his basal cell carcinoma was caused by ionizing radiation exposure while in service. Specifically, the Veteran claims that he was assigned to the USS Ogden when it was stationed in Kwajalein, a former World War II bomb testing site, and Enewetak Atoll, Marshall Island, from April 4 to 5 and September 19 to 20, 1978 in support of the Enewetak Radiological Survey and Cleanup Project. Per the Affidavit Statements and Radiation Risk Activity Worksheets, the Veteran asserts that he and two shipmates were instructed to go to another vessel to exchange equipment. The Veteran also contends he walked on the beach and went swimming in his free time, noting that he obeyed the warning to swim no more than 15 minutes in the waters. Additionally, the Veteran reported that the base on the island had radiation monitor marking around it. He contends that he recalled being warned of certain exposure risks on that island and that service members would only have short duty periods at the location. See March 2010, June 2020 Radiation Risk Activity Worksheets, April 2018 Affidavit. The Veteran reports that between 1985 and 1994 he had two lumps removed from his neck at Kaiser Permanente. The Veteran advised that these treatment records were destroyed due to the facility’s retention policy; however, he recalls being told the lumps were benign and did not recall being diagnosed with skin cancer or having skin cancers removed during this time. The Veteran reported that he first developed basal cell carcinoma around the 2000s, which progressed in frequency and severity over the years, requiring multiple surgical removals. The Veteran believes that his basal cell carcinoma is related to radiation exposure during service at Kwajalein and Enewetak Atoll, Marshall Islands. See March 2020 Statement in Support of the Claim, March 2020 Affidavit, October 2020 Correspondence. Initially, the Board finds that the Veteran has a current diagnosis of basal cell carcinoma, as reflected in the private and VA treatment records. See October 2014, March 2016, August 2018 VA treatment records. See September 2003, June 2008 private treatment records; May 2010, June 2012, December 2015 VA treatment records. The Board finds that the evidence is at least in equipoise on the question of whether the Veteran was exposed to ionizing radiation during active service. The service personnel records show that the Veteran was assigned to the USS Ogden from June 1977 to January 1979. A May 2017 letter from the Naval Dosimetry Center indicates that a review of exposure registry by name, command, service number and SSN show no reports of occupational exposure to radiation relating to the Veteran. See May 2017 Correspondence. In a January 2018 letter, the Defense Threat Reduction Agency (DTRA) noted that the USS Ogden temporarily operated from Kwajalein and Guam, Mariana Islands, to support cleanup efforts at Enewetak Atoll, Marshall Islands, by transporting equipment and supplies. DTRA noted that no atmospheric nuclear testing was conducted at Kwajalein from 1945 to 1962. DTRA found that a review of USS Ogden’s deck logs confirm that the ship was present Enewetak from April 4 to 5, 1978 and September 19 to 20, 1978. DTRA found no record of the Veteran’s presence on the restricted northern islands of the atoll, and no record of exposure to ionizing radiation. See January 2018 Correspondence. In April 2018 and October 2019, the Veteran submitted articles on the radiological cleanup at Enewetak Atoll and possible exposures to low levels of radiological contamination during the cleanup. April 2018 and October 2019 Correspondence. Resolving reasonable doubt in the Veteran’s favor, there was factual in-service exposure to ionizing radiation during service at Enewetak Atoll, Marshal Islands. In this case, the Veteran’s lay statements indicate that the Veteran first began to have lumps removed from his skin in 1985, having had approximately two lumps removed at Kaiser Permanente between 1985 and 1994 per lay reports. The Veteran asserts that these skin growths were benign, and he did not recall being diagnosed or treated for skin cancer during this period, and did not recall any diagnosis or treatment for basal cell carcinoma until around the 2000s. See March 2020 Affidavit, March 2020 Statement in Support of the Claim. A review of the medical evidence shows that basal cell carcinoma was first diagnosed in September 2003, 24 years after service separation. Private and VA treatment records show outpatient surgical excisions of basal cell carcinoma from the clavicle, back, chest, flank, and abdomen in subsequent years. See September 2003, March 2008, April 2008, March 2005, June 2008 private treatment records; May 2010, June 2012, October 2013, December 2015, September 2017. Post-service medical records reflect that the Veteran had a history of smoking tobacco from age 15 to 37, and he has a family history of cancer, as his father had skin cancer (melanoma), and his mother had lung and brain cancer. See March 2008 private treatment record, December 2015, January 2016, June 2019 VA treatment records. The Veteran also reported post-service occupational exposure to chemicals as a boiler operator from 1979 to 1985, which required mixing chemicals to control conductivity of boiler-feedwater, but it is unknown whether these chemicals were carcinogenic. See March 2010 Radiation Risk Activity Worksheet. Certain diseases associated with exposure to ionizing radiation will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d)(2). Basal cell carcinoma is not on the presumptive list of diseases associated with radiation exposure. See 38 C.F.R. §§ 3.309(d). As previously discussed, the provisions of 38 C.F.R. § 3.311 provide for development of claims based on radiation exposure during active service and post-service development of a radiogenic disease. The provisions do not give rise to a presumption of service connection, but rather establish a procedure for handling claims brought by radiation exposed veterans. See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). 38 C.F.R. § 3.311 essentially states that, in all claims in which it is established that a radiogenic disease first became manifest after service, and it is contended that the disease resulted from radiation exposure, a radiation dose assessment will be made. As previously discussed, the Board has found that there was some radiation exposure. The Veteran claimed that he was exposed to radiation while he was stationed at Kwajalein and Enewetak Atoll in support of the Enewetak Atoll clean up. The Veteran also submitted articles discussing the cleanup of Enewetak and possible exposure to radiogenic contaminants. Of record is the May 2017 letter from the Naval Dosimetry Center, which indicated that they were unable to locate any record of the Veteran being occupationally exposed to ionizing radiation during service. Also, of record is the January 2018 letter from DTRA, which indicates that the Veteran was assigned to USS Ogden, which temporarily operated from Kwajalein and Guam, Mariana Islands, to support cleanup efforts at Enewetak Atoll, Marshall Islands, and that the Veteran was present at Enewetak from April 4 to 5 and September 19 to 20, 1978. However, DTRA indicated that they were unable to locate any records of exposure to ionizing radiation for the Veteran. Nevertheless, the Veteran’s claim was referred to the Under Secretary for Health to obtain a dose assessment pursuant to section 3.311(a). In October 2020, a memorandum opinion from the Under Secretary of Heath was prepared by a Health Physicist and reviewed by the Director of Post-9/11 Era Environmental Health Program (10P4Q). This opinion summarized relevant biographical information of the Veteran, and highlighted the May 2017 and January 2018 letters from the Naval Dosimeter Center and the DTRA indicting that there was no record of exposure to ionizing radiation for the Veteran. The opinion also considered the findings of the Defense Threat Reduction Agency, Radiation Dose Assessment for Military Personnel of the Enewetak Atoll Cleanup Project from 1977 to 1980 in rendering a radiation dose estimate. The opinion provider assigned a maximum dose of 0.22 rem for the time spent in the Pacific islands mentioned in in the claim, giving the Veteran the benefit of doubt regarding in-service radiation exposure. In preparing the opinion, the Veteran’s employment history, the history of exposure to other known carcinogens, any radiation exposure prior to and after service, smoking and other tobacco use history, and any additional information relevant to causes of the Veteran’s claimed disease were also considered The opinion providers opined that it is unlikely that the Veteran’s basal cell carcinoma skin cancer was caused by exposure to ionizing radiation during military service. The memorandum cited to a February 2019 position statement from the Health Physics Society, that found the following: “The average annual effective dose from natural background radiation in the United States is about 3 mSv [0.3 rem]. A person might accumulate an effective dose from natural background radiation of about 50 mSv [5 rem] in the first 17 years of life and about 250 mSv [25 rem] during an average 80-year lifetime. Substantial and convincing scientific data show evidence of health effects following high-dose exposures (many multiples of natural background). However, below levels of about 100 mSv [10 rem] above background from all sources combined, the observed radiation effects in people are not statistically different from zero.” Memorandum of Radiation Review, Director, Post-9/11 Era Environmental Health Program (10P4Q) (Oct. 6, 2020) (citing HEALTH PHYSICS SOCIETY, RADIATION RISK IN PERSPECTIVE (February 2019)). Based on this information, the opinion providers reasoned that, because the Veteran’s estimated lifetime total radiation dose of 0.22 rem did not exceed 100 mSv (10 rem) above natural background levels, the radiation exposure was unlikely to have caused the skin cancer. An October 2020 memorandum opinion from the Director for VA Compensation Service took into consideration the October 2020 memorandum from the Director, Post-9/11 Era Environmental Health Program, written for the Under Secretary for Health, and concluded that there was no reasonable possibility that the Veteran’s basal cell carcinoma was the result of his radiation exposure during service. Thus, in light of these opinions, the Board finds that the provisions of 38 C.F.R. § 3.311 have been adhered to; however, these opinions of record weigh against the Veteran’s claim for service connection. Thus, service connection based on this dosage estimate and opinion under 38 C.F.R. § 3.311 is not warranted. The Board is also obligated to consider service connection without reference to the radiation regulations. Specifically, the United States Court of Appeals for the Federal Circuit in Combee, 34 F.3d at 1043-44, held that regulations governing presumptive service connection for radiation exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. Accordingly, the Board will evaluate the Veteran’s claim under the regulations governing direct service connection, as well as presumptive service connection for chronic disabilities of cancer. The Board finds that the weight of the lay and medical evidence of record demonstrates that basal cell carcinoma was not incurred in service, and symptoms of basal cell carcinoma were not chronic in service. Service treatment records, to include the December 1978 service separation examination report, are silent for symptoms, diagnosis, or treatment of basal cell carcinoma during service. The weight of the lay and medical evidence is against finding that symptoms of basal cell carcinoma were continuous after service separation or that symptoms began to manifest to a compensable degree within one year of service separation. The Veteran did not endorse any treatment for skin problems until 1985, which is five years after service, but he noted that he was only treated for benign skin growths, and does not recall any symptoms, diagnosis, or treatment of skin cancer between 1985 and 1994. During a January 2016 VA dermatology clinic appointment, for the purpose of treatment, the Veteran provided a lay history of onset of skin cancer outbreaks starting at age 40. The DD Form 214 indicates that the Veteran was born in June 1955, which suggests an onset of symptoms of skin cancer in 1995, 16 years after service separation. Notably, a September 1995 private treatment note indicates the Veteran only reported a history of psoriasis, but did not endorse any symptoms, diagnosis, or treatment for skin cancer. The medical evidence of record does not reflect symptoms or diagnosis of skin cancer until 2003, 24 years after service separation. See January 2016 VA treatment record; September 1995, September 2003 private treatment records. This same evidence also shows that symptoms of basal cell carcinoma did not manifest within one year of active service, as symptoms of basal cell carcinoma were not reported until 24 years after service separation. As for the theory of direct service connection, the weight of the lay and medical evidence demonstrates that basal cell carcinoma skin cancer, which began after service, was not incurred in service and is not otherwise related to active service, to include as due to ionizing radiation exposure during service. Concerning an in-service incurrence, the Veteran’s service treatment records do not indicate, and the Veteran does not contend, that he suffered a from skin cancer in service. Nevertheless, the Board acknowledges the Veteran’s exposure to ionizing radiation while in service as an in-service event. As noted above, the October 2020 memorandum opinion prepared for the Under Secretary for Health by the Post-9/11 Era Environmental Health Program opined that the Veteran’s basal cell carcinoma was not related to the radiation exposure the Veteran described in service. Similarly, the director of VA Compensation Services determined that there was no reasonable possibility that the Veteran’s basal cell carcinoma was the result of his radiation exposure during service. Also, of record are articles the Veteran submitted regarding radiation exposure being an risk factor for the development of skin cancers. However, these articles are not sufficient to grant benefits, as they do not consider the Veteran’s specific duration and dose estimate of radiation exposure, the Veteran’s family history, which include a father who had skin cancer, the Veteran’s exposure to other carcinogens such as tobacco products, or other post-service exposures that may have contributed to his skin cancer. The Board acknowledges the Veteran’s statements that he believes his exposure to ionizing radiation in service caused his skin cancer almost 24 years later. However, while the Veteran is competent to report symptoms related to skin cancer, he is not competent to make the determination that skin cancer is due to ionizing radiation exposure in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the current basal cell carcinoma and active service, including exposure to ionizing radiation during service. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for basal cell carcinoma on a direct, presumptive, or any other basis, and the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore 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.