Citation Nr: 21015558 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-10 297 DATE: March 17, 2021 ORDER Entitlement to service connection for skin cancer of the right cheek is denied. Entitlement to service connection for skin cancer of the left arm is denied. FINDINGS OF FACT 1. A radiation dose assessment indicates an absolute maximum total effective dose equivalent (TEDE) of 0.145 rem for the Veteran’s 24 years of service. 2. The evidence of record does not establish that the Veteran’s basal cell carcinoma, claimed as skin cancer of the left arm and right cheek, began during his active service or that it is otherwise causally related to his active service, to include as related to his recognized in-service exposure to radiation, his in-service exposure to ultraviolet light, or his claimed in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for basal cell carcinoma of the right cheek have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.311. 2. The criteria for service connection for basal cell carcinoma of the left arm have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to March 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in March 2019. A transcript of the hearing has been associated with the file. This matter was previously before the Board in June 2019, at which time it was remanded for additional development. That development having been completed; this claim is once again before the Board. Service Connection The Veteran contends that the basal cell carcinoma on his right cheek and left arm were caused by his active service, to include as due to his exposure to herbicide agents, radiation and ultraviolet light while in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Further, where a Veteran served for at least 90 days during a period of war or after December 31, 1964, and manifests certain chronic diseases, including malignant tumors such as basal cell carcinoma, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection can also be considered on a presumptive basis for conditions that manifest to a degree of 10 percent or more within one year of separation from active service. 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Herbicide Agent Exposure Here, the Veteran was not diagnosed to have basal cell carcinoma until November 2011, more than twenty years after separation from active service. With respect to herbicide agent exposure, the Veteran testified that he may have had exposure to herbicide agent while stationed at Keesler Air Force Base, Mississippi. The Veteran was stationed at Keesler from 1976-1977. He stated that he was exposed to herbicide agent when the servicemembers who attended to the herbicide agent stored at the base would borrow his section’s equipment to measure the thickness of the barrels to determine if there was corrosion present. The Veteran stated the equipment had herbicide agent on it when it was returned to his section. He would then clean the dirty equipment. The Veteran stated he knew they were inspecting herbicide agent drums because the servicemembers who borrowed the equipment told him they had to measure the thickness of the drums. However, the Veteran has presented no additional evidence to substantiate this claim. Further, his condition of basal cell carcinoma is not on the list of conditions enumerated in § 3.309(e) that are presumptively service-connected due to herbicide exposure. 38 C.F.R. § 3.309(e). As the Veteran’s condition is not one of the presumptive conditions related to herbicide agent exposure and his herbicide agent exposure is not supported by further corroborating evidence, the Board finds that the preponderance of the evidence is against this theory of entitlement. Here, the Veteran was not diagnosed with basal cell carcinoma until November 2011, more than twenty years after separation from active service. His service treatment records contain no indication of any diagnosis of basal cell carcinoma. Further, the evidence does not indicate, and the Veteran does not claim, that his basal cell carcinoma manifested to a degree of 10 percent or more within one year of his separation from active service. The Veteran believes his basal cell carcinoma is related to his service. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board concludes that, while the Veteran has a current diagnosis of skin cancer, the preponderance of the evidence is against direct or presumptive service connection for this condition. Radiation and Ultraviolet Light Exposure Turning now to the Veteran’s contention that his basal cell carcinoma is due to radiation or ultraviolet light exposure during service, the Board finds that the evidence of record does not establish that the Veteran’s basal cell carcinoma is causally related to his recognized in-service exposure to radiation or ultraviolet light. The Veteran’s service treatment records contain no indication of any diagnosis of basal cell carcinoma. Further, the evidence does not indicate, and the Veteran does not claim, that his basal cell carcinoma manifested to a degree of 10 percent or more within one year of his separation from active service. Certain diseases are presumptively service connected in radiation-exposed veterans under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). A “radiation-exposed veteran” is a veteran who while serving on active duty or on active duty for training or inactive duty for training, participated in a radiation-risk activity. 38 C.F.R. § 3.309(d)(3)(i). A “radiation-risk activity” includes onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupation forces in Hiroshima or Nagasaki, Japan, during the period from August 6, 1945, through July 1, 1946; service where the service member was, as part of his or her official military duties, present during a total of at least 250 days before February 1, 1992, on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or an area identified as K25 at Oak Ridge, Tennessee; or certain service performed as an employee of the Department of Energy. 38 C.F.R. § 3.309 (d)(3)(ii). If a claimant does not qualify as a “radiation-exposed veteran” under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one of the presumptive diseases listed in 38 C.F.R. § 3.309(d)(2), the Veteran may still benefit from the development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under § 3.311, “radiogenic disease” means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311. Section 3.311(b)(5) requires that skin cancer become manifest five years or more after exposure. 38 C.F.R. § 3.311(b)(5). Under the development procedures in section 3.311(a), dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims, section 3.311(a) requires that a request be made for any available records concerning the Veteran’s exposure to radiation. Id. These records normally include but may not be limited to the Veteran’s Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the Veteran’s radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). The Board notes that basal cell carcinoma is listed under 38 C.F.R. § 3.311(b)(2) as a radiogenic disease (i.e., any other cancer). It is not, however, among the types of diseases listed at 38 C.F.R. § 3.309(d)(2) subject to presumptive service connection in radiation-exposed veterans. However, the Veteran was exposed to radiation in his work as a nondestructive inspection technician, wherein he utilized x-ray equipment to inspect aircraft and equipment. The Veteran’s service personnel records note that he had a TEDE of .145 during his 24 years of service. As he was exposed to radiation during service, an opinion was sought from the Director of Compensation Service concerning the possible link between his basal cell carcinoma and his service. In an October 2017 letter provided by the Director of Compensation Service, the Director noted that the Department of the Air Force confirmed the Veteran’s radiation exposure in August 2017. The Veteran was exposed to a TEDE (the sum of external and internal dose) of 0.145 rem, with his last exposure recorded in 1983. The director added that “the Health Physics Society, in their position statement PS010-2, Radiation Risk in Perspective, revised in May 2016, states that ‘in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against quantitative estimation of health risks below an individual dose of 5 rem in one year or a lifetime dose of 10 rem above that received from natural sources.’ The position statement goes on to say that ‘there is substantial and convincing scientific evidence of health risks following high-dose exposure. However, below 5-10 rem (which includes occupational and environmental exposures), risks of health effects are either too small to be observed or are nonexistent.’” The director concluded that it was the office’s opinion “that there is no reasonable possibility that the Veteran’s basal cell carcinoma (BCC) on the right cheek or on the left forearm was the result of exposure to ionizing radiation during service.” This information is probative, as it contemplates the history of the Veteran’s relevant radiation exposure and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) The Veteran’s private treatment provider stated in a May 2018 letter that “excessive exposure to ultraviolet light and/or radiation are known carcinogens.” The letter noted the dates of the Veteran’s diagnoses but provided no further evidence or rationale. Further, there is no indication that the private provider reviewed the Veteran’s radiation exposure records and was aware of the Veteran’s TEDE. The private provider also did not provide a definitive opinion regarding this specific Veteran’s exposure to ultraviolet light and radiation and his relevant diagnosis. Thus, the opinion is of little probative value. Nieves-Rodriguez, 22 Vet. App. at 304; Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). An addendum opinion was obtained in February 2020 concerning the Veteran’s exposure to ultraviolet light. The examiner opined that the Veteran’s basal cell carcinoma was less likely than not related to his in-service ultraviolet light exposure. The examiner noted that the top risk factor for developing basal cell carcinoma is sun exposure. The examiner further opined that it would be speculation and medically inaccurate to state that the Veteran’s sun exposure during service was the etiology of the Veteran’s basal cell carcinoma. The examiner added that the Veteran continued to work and to be exposed to the sun after service. Further, the examiner noted that the amount of sun exposure during service versus after service could not be determined in order to determine whether in-service or post-service exposure was the more significant risk factor for his developing basal cell carcinoma. The examiner concluded that the cumulative exposure to UV radiation was the likely cause of the Veteran’s basal cell carcinoma, but again, that the Veteran’s basal cell carcinoma was less likely than not related to his in-service ultraviolet light exposure. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. The Veteran submitted manuals noting that his military occupation required work that resulted in exposure to radiation and ultraviolet light. However, his exposure is not in dispute; rather, the issue is whether that exposure caused his basal cell carcinoma. The Veteran’s radiation exposure ended in 1983 and was well below the amount at which health effects would be expected to be observed, per the medical evidence of record. Further, the Veteran was not diagnosed with basal cell carcinoma until November 2011, more than 20 years after his separation from service. While the Veteran is competent to report having been diagnosed with basal cell carcinoma, he is not competent to provide a nexus opinion regarding his exposure and his condition. The issues are medically complex, as they require knowledge of and interpretation of complicated diagnostic medical testing. See Jandreau, 492 F.3d at 1372, 1377. Consequently, the Board gives more probative weight to the October 2017 Director of Compensation’s letter and the August 2020 VA examiner’s opinion and finds that service connection is not warranted for basal cell carcinoma based on radiation or ultraviolet light exposure. Accordingly, this claim for service connection for basal cell carcinoma must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Geer, 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.