Citation Nr: 21024664 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 10-31 417 DATE: April 23, 2021 ORDER Entitlement to service connection for actinic keratosis is denied. Entitlement to service connection for skin cancer, including squamous cell and basal cell carcinoma, is denied. Entitlement to service connection for a cervical lymph node disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s actinic keratosis began during active service or is otherwise related to an in-service event, injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s squamous cell and/or basal cell carcinoma began during active service or is otherwise related to an in-service event, injury or disease. 3. The preponderance of the evidence is against finding that the Veteran has had a cervical lymph node disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for actinic keratosis have not been satisfied. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for skin cancer, including squamous cell and basal cell carcinoma, have not been satisfied. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a cervical lymph node disability have not been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1946 to March 1948, to include service in Japan. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2017. The issues were originally before the Board in August 2017, where they were denied. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) and, in a September 2018 Memorandum decision, the Court vacated the Board’s August 2017 decision and remanded the claims for further development consistent with its decision. Specifically, the Court found that the Board’s implicit finding in its August 2017 decision that VA’s duty to assist had been satisfied was erroneous, as evidence in the file showed that there were pertinent outstanding private treatment records that VA had not attempted to obtain on the Veteran’s behalf. See 38 C.F.R. § 3.159. Thus, pursuant to the Court’s Order, the Board remanded the claims for further development in June 2019 and again in March 2020. They now return for further adjudication. Of note, the Board remanded the claim in March 2020 for outstanding private treatment records. Specifically, the Veteran authorized the release of records from New England Baptist Hospital in a July 2019 VA Form 21-4142. When VA attempted to obtain these records on the Veteran’s behalf, it was informed that a fee would be charged for the records that could not be waived. Accordingly, VA did not obtain the records, as it is not authorized to pay such a fee. However, the Veteran was not notified of this fact or given the opportunity to obtain them himself. As such, the Veteran was to be notified of VA’s inability to obtain the records due to the fee and invited to submit the records himself since they may provide relevant evidence on the claim. See 38 C.F.R. § 3.159(c). Review of the record since the Board’s last remand indicates that the appropriate notification was sent on March 6, 2020. While the Veteran has been given ample time to respond, to date he has not, and there is no indication that he did not receive VA’s March 6, 2020 correspondence. The Board acknowledges that the record does reflect that the Veteran no longer resides at the West Roxbury, Massachusetts address noted on this correspondence. However, medical treatment records indicate that the Veteran did not move to his current address until late 2020 or early 2021, and the March 6, 2020 notification was not returned as undeliverable. Moreover, the Veteran’s representative also received a copy. As such, the Board finds that its ordered development has been completed to the extent possible, and no further action is necessary. Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Skin disabilities. The Veteran’s claims for skin cancer and actinic keratosis were originally before the Board as simply service connection for a skin disability and was denied in August 2017 based on the absence of a disability for service connection purposes. As noted in the Court’s September 2018 Memorandum decision, however, the record did contain itemized billing statements reflecting that the Veteran received dermatologic treatment from June 2002 through July 2008, and no attempt was made to obtain these private dermatological treatment records. As such, the Board remanded the Veteran’s claim in June 2019, and the records were subsequently obtained which show diagnoses of squamous cell carcinoma and basal cell carcinoma based on biopsy studies, including in November 2011 (squamous cell carcinoma), October 2013 (basal cell carcinoma and squamous cell carcinoma), and April 2019 (squamous cell carcinoma). They also show diagnoses of actinic keratosis, including most recently in January 2019 and April 2019. It is the Veteran’s contention that he had ionizing radiation exposure while serving in Japan, where he had several visits to Hiroshima and Nagasaki in 1947, roughly two years after the dropping of the atom bomb on those sites. Moreover, he submitted a buddy statement by another service member who served with him in the 34th infantry which attests to visits to Nagasaki. In March 2020, the Board conceded that the Veteran visited these sites, noting that his service personnel records show that he was stationed at Sasebo, Japan where he served with Company A of the 34th Infantry, 24th Division. However, because the Veteran’s visits to Hiroshima and Nagasaki occurred after July 1, 1946, he is not considered a “radiation-exposed veteran,” as defined in 38 C.F.R. § 3.309(d), for purposes of the presumption of service connection for diseases listed in 38 C.F.R. § 3.309(d)(2)(i). Moreover, skin cancer is not listed among these diseases. See 38 C.F.R. § 3.309(d)(2). Nevertheless, skin cancer does qualify as a radiogenic disease which, under 38 C.F.R. § 3.311(b)(2), is defined as a disease that may be induced by ionizing radiation. The development procedures applicable to claims based on exposure to ionizing radiation must be accomplished to determine whether service connection may be established, which consists of requesting any available records concerning a veteran’s exposure to radiation, including a Record of Occupational Exposure to Ionizing Radiation (DD Form 1141) and any other records which may contain information pertaining to a veteran’s radiation dose in service. 38 C.F.R. § 3.311(a). All such records are to 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. Id. If it is determined that a veteran was exposed to ionizing radiation, and such veteran subsequently develops a radiogenic disease which becomes manifest within the period specified in 38 C.F.R. § 3.311(b)(5), the claim will be referred to the Under Secretary for Benefits (Under Secretary) for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the Under Secretary shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. §§ 3.311(b), (c)(1). As such, the Board remanded the Veteran’s claim for this development in March 2020. Unfortunately, a negative response was received from the U.S. Army Dosimetry Center in December 2020 that no records were available. Thus, the claim was not referred to the Under Secretary and no advisory medical opinion was obtained. As radiation exposure cannot be established, further development of this issue is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (evidence of a current disability is required to trigger VA’s duty to provide a VA examination or opinion). The Board notes, however, that an April 2019 private dermatology treatment record notes that the Veteran had sun exposure during his service. As the Veteran’s skin disabilities may be related to such exposure, the Board’s March 2020 remand also order a medical opinion from a VA examiner as to whether any current skin disability was related to such exposure, which was provided in December 2020. After reviewing the pertinent medical history and confirming his diagnoses of basal cell carcinoma, squamous cell carcinoma, and actinic keratoses, and noting that cumulative sun exposure is known to cause all three skin conditions, the examiner opined that it was less likely than not (less than 50 percent probability) that these skin disabilities are related to such exposure. The examiner explained the Veteran’s service treatment records do not indicate any episodes of sun related injuries or sunburns. Further, since the Veteran served in Japan which is considered a temperate climate with four distinct seasons, there would be no extraordinary sun exposure risk compared with service in tropical or desert environments. The examiner also noted that the Veteran’s fair skin would be the most significant risk factor for the development of his skin conditions regarding sun exposure, and that his post-service work history included outdoor work as a railroad track laborer. Thus, since the development of this Veteran’s skin conditions would be due to cumulative sun exposure, Japan’s temperate environment would not represent a risk that was any more significant than the cumulative pre-service and post-service sun exposures he experienced in the United States. The Board finds the above opinion to be highly probative as it was made by a medical professional with consideration of the specific facts in this case. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran’s statements that he believes his skin disabilities are related to his service, to include ionizing radiation or sun exposure. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., a skin condition; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not, however, competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. Thus, as the most probative evidence is against a finding that the Veteran’s skin disabilities are related to his service, service connection must be denied. 2. A cervical lymph node disability. Like his skin disability claim, the Board previously denied the Veteran’s claim for a cervical lymph node disability in August 2017 as the record did not show a current disability. Based on the following, the Board continues to find no current disability for which service connection may be warranted. As the Board noted in its previous denial, as well as its subsequent remands after the Court’s vacatur, February 2005 private magnetic resonance imaging (MRI) reflects a finding of a lymph node in the left anterior cervical chain, which was considered “of uncertain significance.” The MRI report further notes that if there was clinical concern for pathologic process, a computerized tomography (CT) scan of the neck would be indicated, which the record reflects was performed the following March 2005. While it was noted that the Veteran had a palpable mass or lymph node seen on that MRI which was suspected to be a benign disease, no lymph node was identified, although it was observed that there was a “beam-hardening artifact” that may have prevented the lymph node from being seen. Subsequent private treatment records do not further reference the lymph node, including from the private facility that conducted the above MRI and CT scans. As the record did not show that the Veteran had a current disability associated with the lymph node, the Board remanded the claim for further development in March 2020for outstanding private treatment records. Specifically, the Veteran was to be notified that VA could not obtain private treatment records from New England Baptist Hospital due to a nonwaivable fee, and that he should obtain and submit those records himself. As noted, the Veteran received VA’s notification on March 6, 2020, but he did not respond. No other records suggest any cervical lymph node disability, including more recently received VA and private treatment records. The Board acknowledges that the Veteran believes that the cervical lymph node is possibly cancerous, and thus claims service connection on the basis that it was caused by radiation exposure while serving in Nagasaki, Japan, the record continues to be against a finding that he has a cervical lymph node disability. As the Board noted in its previous denial, the cervical lymph node detected via MRI is akin to a laboratory finding or test result and does not in itself establish the presence of a current disability. See 61 Fed. Reg. 20440, 20,445 (May 7, 1996) (supplementary information preceding Final Rule amending the criteria for evaluating endocrine system disabilities indicates that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory test results, and are not, in and of themselves, disabilities); Allen v. Brown,7 Vet. App. 439, 448 (1995) (holding that pursuant to 38 C.F.R. § 4.1, the term disability “should be construed to refer to impairment of earning capacity due to disease, injury, or defect, rather than to the disease, injury, or defect itself”). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1131. In the absence of proof of a current diagnosis of the claimed disability, service connection for that disability cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Regarding Saunders v. Wilkie, the Federal Circuit stated that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. 886 F.3d 1356 (Fed. Cir. 2018). In sum, pain alone resulting in functional impairment is in fact a disability, and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. However, the Veteran does not claim, nor do his medical records show, that he experiences any functional impairment due to his claimed cervical lymph node. Thus, the Veteran’s claim must again be denied. In reaching both of the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.