Citation Nr: 21015414 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-08 823 DATE: March 17, 2021 ORDER Service connection for skin cancer is denied. FINDING OF FACT 1. The Veteran’s calculated lifetime total radiation dose of, 1.890 roentgen equivalent man (rem), did not exceed 10 rem above the natural background. 2. The weight of the evidence is against finding that the ionizing radiation the Veteran was exposed to during his active duty service, caused skin cancer. 3. The weight of the evidence is against finding that any in-service exposure, including chemical exposure, caused skin cancer. CONCLUSION OF LAW The criteria for service connection for skin cancer have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1956 to June 1959. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in January 2018. A complete transcript of that hearing is of record. This appeal was previously before the Board in April 2018 and in April 2020. The April 2018 Board decision remanded the claim to obtain a radiation dose estimate based on the Veteran’s credible testimony regarding probable in-service radiation exposure, the lay statements from other Veterans, and the submitted medical articles. The Regional Office (RO) sent a request to the US Army Medical Command, in May 2019 for a Record of Exposure to Ionizing Radiation, or an equivalent record of occupational radiation exposure. The RO received a response in July 2019, that the US Army Dosimetry Center was unable to locate any records pertaining to the Veteran. The RO denied the Veteran’s claim in a February 2020 supplemental statement of the case, finding that radiation levels could not be ascertained because records related to radiation exposure could not be located. The April 2020 Board decision found that the RO was not in compliance with the April 2018 Board remand directives because the RO did not address the Veteran’s credible testimony and submitted articles regarding his possible radiation exposure, as instructed by the April 2018 Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The appeal was remanded in order to forward the Veteran’s claims file to the Undersecretary for Health to prepare a radiation dose estimate for the Veteran. The estimate was asked to be based on the Veteran’s credible testimony that he used a small cylinder full of Cobalt-60 in order to obtain x-rays of bombs (MOS: explosive ordinance disposal specialist) and to address his personal calculation of his exposure. The Veteran has calculated that Leakage of 1080 Ci Co-60 Source at 1 meter with Cobalt-60 camera closed shielding 4 1/10 value Lead, 2 1/10 value Tungsten, source value of.00108 Ci Co-60. With a leakage calculation of.012254 mSv/hr at 1 meter from all sides. A visual Monte Carlo dose calculation for the skin was 13.26 DT in microGy. See Correspondence dated January 11, 2018. A VA health physicist provided a comprehensive analysis and discussion of the Veteran’s claims file, to include his personal calculation of the radiation he was exposed to during his active duty service. See VA Memo dated November 17, 2020. The health physicist acknowledged the Veteran’s personal calculation and found that it was accurate based on their own calculations. The health physicist provided their own radiation dose estimate and provided a medical opinion. As such, the Board finds that the Board’s April 2020 remand directives have been substantially complied with and the Board will proceed with adjudication of the Veteran’s service connection claim for skin cancer. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection requires competent evidence showing: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For claims based on alleged exposure to ionizing radiation, service connection can be awarded on a presumptive basis for diseases specific to radiation exposed veterans, i.e., one that engaged in a radiation risk activity, under 38 U.S.C. § 1112 (b)(2) and 38 C.F.R. § 3.309 (d). However, skin cancer is not considered to be radiogenic diseases under these provisions. Service connection for skin cancer is denied. The Veteran asserts that his MOS as an explosive ordinance disposal specialist exposed him to ionizing radiation. Specifically, the Veteran testified that in a training exercise, he and fellow servicemembers circled around a bomb and used a natural Cobalt-60 unit. They slid the x-ray plate on and each of the servicemembers went through the procedure. During his turn, as he pulled a large lead cylinder that was full of Cobalt-60 from the x-ray device, he stumbled and as the cylinder pointed at his legs, another servicemember took the x-ray, which exposed his legs to radiation. See Hearing Transcript dated January 24, 2018. The Veteran provided a letter from his treating physician for skin cancer. The physician reported that they saw the Veteran in January 2018 for an evaluation of the skin cancer on his lower legs. The physician noted that the Veteran had several well-healed scars, including a skin graft. The physician reported that the scars could certainly be caused by Cobalt-60 ionizing radiation, in the absence of any other exposure, including sun exposure. The physician also provided a nexus statement worksheet dated March 2, 2020. The physician indicated that he reviewed the Veteran’s post-service treatment records and checked a box that stated the Veteran’s skin cancer was, “At least as likely as not caused by or a result of Exposure to ionizing radiation (50/50 probability).” The physician noted that he was guessing at the probability, without direct knowledge of the quantity of cobalt exposure. Given the Veteran’s credible testimony and the fact that his MOS was explosive ordinance disposal specialist, an opinion was sought to prepare a radiation dose estimate. A VA health physicist provided an examination report dated November 17, 2020. The health physicist noted the Veteran’s date of birth and his dates of active duty service. The health physicist acknowledged the Veteran’s MOS and noted that he participated in a US Naval Explosive Ordinance Disposal training program and received a certification of completion. They also acknowledged that the Veteran’s STRs were presumed to have been destroyed in the July 12, 1973 fire at the National Personnel Records Center and that there were otherwise no records of the Veteran’s exposure to ionizing radiation. The health physicist acknowledged the alleged exposure to ionizing radiation during service and recognized that he has been diagnosed with skin cancer at various times between 1997 and 2013. The Veteran was noted to be a pack a day smoker until 1960; had no reports of a family history of cancer; experienced a “medium” sun exposure throughout his life; and worked as a salesman. There was no post-service radiation exposure noted. The health physicist stated that they disagreed with the private physician’s opinion because he did not mention an amount of radiation dose the Veteran may have been exposed to. The health physicist noted that radiation dose is the prime factor to consider when determining causation of radiation induced diseases. Being in the vicinity of a radiation source does not necessarily mean a significant exposure occurred. The health physicist explained that where presumption does not exist, the dose must be determined through direct measurement or reconstruction methodology and once the dose is determined, the issue of disease causation can be addressed. The health physicist acknowledged the Veteran’s personal calculation of his radiation dose based on the incident described in his claim and found the calculated dose to be accurate based on the parameters entered into RadPro calculators and the visual Monte Carlo, used by the Veteran. The health physicist noted that the resulting dose as calculated was 18.90 microgay, or 1.890 rem, to the skin. The health physicist noted the general baseline of natural background radiation in the United States that a person might accumulate an effective dose from natural background radiation of about 5 rem in the first 17 years of life and about 25 rem during an average 80-year lifetime. However, below levels of about 10 rem above the natural background from all sources combined, the observed radiation effects in people are not statistically different from zero. The health physicist concluded that because the Veteran’s calculated radiation dose of 1.89 rem, from his in-service exposure event, did not exceed 10 rem above the natural background, it was unlikely that his skin cancer was caused by his exposure to ionizing radiation during his military service. The Board notes that a memorandum from the Veterans’ Radiation Exposure Investigation Program (VREIP) at the US Army Public Health Center was received in February 2021. The VREIP health physicist reviewed the Veteran’s description of his radiation exposure and his dose calculation. The VREIP health physicist performed their own dose calculation and found that the Veteran’s calculation of 18.9 millisievert (mSv) was consistent with theirs, but slightly lower than those calculated using their screening methods. The VREIP health physicist opined that the dose should be assigned 25 mSv. The VREIP health physicist concluded that there was sufficient information to estimate the radiation dose to the skin and that the Veteran did not participate in a radiation risk activity. Here, there are three competent medical opinions of record. The Veteran’s treating physician provided a positive nexus opinion in January 2018 and in March 2020. However, the Board notes that the private physician has not provided a sufficient rationale to support their ultimate conclusion. For example, the physician simply stated that the Veteran’s skin cancer could be caused by ionizing radiation, but did not explain how or why. Further, the Board notes that the physician noted that they were guessing at the probability, that it was a greater than 50 percent chance that the in-service radiation exposure caused skin cancer, because they did not have direct knowledge of the quantity of cobalt exposure. The November 2020 health physicist specifically noted in their report that radiation dose is the prime factor to consider when determining causation of radiation induced diseases. As such, based on the foregoing, the private physician’s medical opinion is afforded very little probative weight. On the other hand, the VA health physicist’s and the VREIP health physicist’s opinions are afforded great probative weight. Both health physicist’s reviewed the Veteran’s claims file and reported the pertinent information. Further, the VA health physicist provided a well-reasoned rationale that explained what level of exposure to ionizing radiation could cause radiation induced diseases. The VA health physicist described the general baseline of natural background radiation individuals who reside in the United States are exposed to; and that levels below 10 rem above the natural background are not statistically different from zero. The VA health physicist acknowledged the Veteran’s personal calculation of ionizing radiation exposure and found it to be accurate. The Veteran calculated his exposure during the alleged incident to be 1.89 rem; however, the VA health physicist pointed out that the calculated dose did not exceed 10 rem above the natural background. Further, the VREIP health physicist reviewed the Veteran’s dose calculation and found that the radiation dose experienced by the Veteran was actually higher than he calculated, about 5 mSv higher, but still concluded that the Veteran did not participate in a radiation risk activity. The Board notes that the VREIP health physicist’s dose calculation of 2.5 rem, still does not exceed 10 rem. As such, based on the foregoing, the Board finds that both the VA and the VREIP health physicist’s medical opinions are afforded great probative weight. To the extent that the Veteran believes that his skin cancer is the result of his in-service exposure to ionizing radiation, such a medical opinion requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the Veteran’s credible testimony about his radiation dose, his submission of medical articles, and a medical opinion from a private physician; a VA medical opinion was sought to determine his radiation dose, which took into account his personal radiation dose calculation, as well as the other pertinent evidence of record. Unfortunately, the November 2020 VA health physicist provided a negative nexus opinion, with a well-reasoned and robust rationale and those findings were confirmed by a VREIP health physicist. The Board notes that although the Veteran has provided a competent medical opinion, it was not adequate because it did not provide a sufficient rationale and as the VA health physicist explained, the private physician did not mention an amount of radiation dose the Veteran may have been exposed to, which is a prime factor to consider when determining causation of radiation induced diseases. The Board acknowledges the articles cited to by the Veteran’s representative. See Appellate Brief received January 27, 2021. The representative asserted that the Veteran was exposed to fire-fighting foam laced with per-and-polyfluoroalkyl substances (PFAS), while he was stationed at Indian Head, Maryland. The representative cited to three different articles, which stated that (1) PFAS contaminated most of the east coast, that (2) PFAS caused immunosuppressive effects, and that (3) PFAS have been linked to cancer. However, the Board notes that these articles do not provide a link between PFAS and skin cancer specifically, but merely state that PFAS can cause immunosuppressive effects and that they have been linked to “cancer”. The Board finds that this evidence does not trigger VA’s duty to assist, as the studies are too general and lack the specificity to link in-service exposures to the Veteran’s skin cancer. The studies do not mention skin cancer, but only cancer in general. Moreover, the representative does not explain how much PFAS the Veteran was exposed to when he was stationed at Indian Head, Maryland or how its effects have caused his specific type of cancer. There is no discussion of the latency of the development of skin cancer decades after service and whether such would be considered to be consistent with PFAS exposure. Additionally, while the representative Indian Head may now be highly contaminated, the Veteran was stationed there in the 1950s, and the article provides no estimate of any contamination at that time. Finally, these articles were not accompanied by a medical opinion from a competent medical professional establishing or even suggesting a medical nexus between PFAS exposure and skin cancer. As such, the Board affords these articles little probative weight. See Sacks v. West, 11 Vet. App. 314, 317 (1998). The Board is sympathetic to the Veteran’s claim and does not wish to minimize his contention. However, the medical evidence weighs against his claim. The VA health physicist reported that the Veteran’s calculation of radiation exposure was accurate, but was not enough to make it likely that his in-service radiation exposure was the cause of his skin cancer. Further, the VREIP health physicist found that the Veteran’s calculation was an underestimation, but was still under the threshold for finding that he participated in a radiation risk activity. As such, the criteria for service connection have not been met; the Board cannot resolve reasonable doubt in his favor because the weight of the evidence is not in relative equipoise. Accordingly, service connection for skin cancer is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.