Citation Nr: 21028601 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-51 379 DATE: May 11, 2021 ORDER Entitlement to service connection for a malignant melanoma cancer secondary to the Veteran's service-connected right eye chalazion, to also include as due to ionizing radiation exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding the Veteran's malignant melanoma cancer manifested in service, or was otherwise related to service, to include as secondary to a service-connected disability or due to ionizing radiation exposure. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a malignant melanoma cancer secondary to the Veteran's service-connected right eye chalazion, to include as due to ionizing radiation exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1988 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in October 2020, it was remanded for additional development. Specifically, the RO was instructed to obtain any outstanding treatment records and develop the claim under the provisions of 38 C.F.R. § 3.311. The Veteran's records were obtained, and the necessary development, including obtaining an opinion from the Under Secretary for Benefits, was followed. As such, the Board finds that the AOJ substantially complied with the directives in the October 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or is the result of a service-connected disease or injury, or that a service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310. To show chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. A decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran seeks service connection for malignant melanoma cancer as secondary to his service-connected chalazion (a benign skin growth), status post removal, right lower eyelid; or in the alternative as due to ionizing radiation exposure while in service. For the reasons discussed below, the Board finds that the Veteran's claim must be denied. Service connection for a disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain diseases that are presumed to have been the result of in-service radiation exposure. See 38 C.F.R. § 3.309(d). Second, under 38 C.F.R. § 3.311, there is a list of "radiogenic diseases" that will be service connected after required agency research. Third, a veteran may establish direct service connection when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). This case does not fall into the first category, because the Veteran does not have a disease specific to radiation-exposed veterans that would automatically be presumed service-connected under 38 C.F.R. § 3.309(d). The Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if he had a radiogenic disease and/or claimed exposure to ionizing radiation in service. For purposes of 38 C.F.R. § 3.311, the term radiogenic disease means a disease that may be induced by ionizing radiation, to include skin cancer. See 38 C.F.R. § 3.311(b)(2)(vii). As noted in the October 2020 Board Remand, the Veteran claimed exposure to ionizing radiation, and developed a malignant melanoma, the procedures of 38 C.F.R. § 3.311 apply. The procedure under § 3.311 is to forward the claim to the VA Under Secretary for Benefits for further consideration, who may request an advisory medical opinion from the Under Secretary for Health. In forming a final opinion as to whether a Veteran's disease resulted from ionizing radiation exposure, the Under Secretary for Benefits may consider: the probable dose, relative sensitivity of involved tissue to induction, the Veteran's gender and pertinent family history, the Veteran's age at the time of exposure, time-lapse between exposure and onset of disease, and the extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to the development of the disease. See 38 C.F.R. § 3.311(e). The Veteran's military occupational specialties (MOS) in service were an electronics technician, submarine nuclear propulsion plant operator-reactor control, and nuclear propulsion plant maintenance supervisor-electronics. The record does contain a DD Form 1141 Record of Occupational Exposure to Radiation for the Veteran which provided documentation of his in-service radiation exposure. The Veteran was exposed to ionizing radiation at a Nuclear Power Training Unit (NPTU) at Idaho Falls from October 1989 to August 1990 and on the USS Michigan from September 1990 to February 1994. Additionally, the Veteran provided lay statements indicating that he was a reactor operator on a ballistic missile submarine and his duties included working in the nuclear reactor. He further noted that he slept between nuclear missiles. The Veteran's service treatment records (STRs) show a normal entrance examination. He reported good health. The Veteran's STRs acknowledge his occupational radiation exposure and showed treatment for a lump on his right eyelid and eventual chalazion surgery. These records are otherwise negative for any diagnosis, complaint, or abnormal findings related to a melanoma or other skin cancer condition. The Veteran was first diagnosed with a metastatic malignant melanoma in July 2015, approximately 21 years after his last exposure to ionizing radiation. The Veteran was provided with an October 2015 VA Skin diseases examination. The examiner noted that the Veteran was diagnosed with a malignant melanoma in July 2015. Further, the examiner noted that the Veteran had a chalazion removed from his right lower eyelid in 1990 which has not had a recurrence and noted that the Veteran served as a nuclear reactor operator in the Navy. The examiner opined that it is less likely than not (less than a 50 percent probability) that the Veteran's melanoma is etiologically related to the Veteran's service-connected benign growth of the skin, status post removal, right lower eyelid. The rationale provided is that there is no association between a chalazion with malignant melanoma. Further, the examiner notes there was no diagnosis of melanoma in the Veteran's STRs. The Veteran submitted his private treatment records which document his diagnosis and treatment for his melanoma. However, these records do not provide an etiology regarding his condition, nor do they provide a nexus linking his condition to his active duty service, or his in service ionizing radiation exposure. The Board additionally notes that the Veteran's metastatic melanoma was indicated as non-chronic by his private treating physician Dr. A.D. in a January 2020 treatment note. In January 2021, the VA Director of Compensation Service (Director) provided an advisory opinion regarding a Radiation Review under 38 C.F.R. § 3.311 for the issue of the Veteran's entitlement to service connection for a malignant melanoma as a result of ionizing radiation exposure. The Director indicated that the Veteran's service records included a DD Form 1141 which showed a total lifetime accumulated dose of 00.229 rem (total effective dose equivalent) which consisted of his exposure while assigned to the NPTU at Idaho Falls and his periods of service aboard the USS Michigan. The Director also noted the Veteran's records also included a NAVMED 6470/11, Record of Occupational Exposure to Ionizing Radiation from Internally Deposited Radionuclides, and addendum to DD Form 1141. These forms show scans on August 9, 1989, and March 2, 1994, each with measurements at less than the minimum detectable activity (committed effective dose equivalent of 00.000 rem) Based on the evidence of the record, the Director stated that the Veteran's occupational exposure to ionizing radiation did not meet or exceed an annual dose of 5 rem, or 10 rem in a lifetime. Therefore, the Director found that an advisory medical opinion from the Under Secretary for Health is unnecessary. The Director cited to, and attached to his opinion, memorandums from the Post 9/11 Era Environmental Health program and the Health and Physics society regarding ionizing radiation exposure, health risks of low dose exposure, and background effective radiation exposure. The Health Physics Society, in their position statement PS010-4, Radiation Risk in Perspective, revised February 2019, noted that "The average annual equivalent dose from natural background radiation in the United States is about 3 mSv [0.3 rem]. A person might accumulate an equivalent 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." In conclusion, the Director stated that melanoma is a form of cancer, which is considered a "radiogenic disease" under 38 C.F.R. § 3.311(b), however, the Veteran's service record did not show evidence of radiation exposure exceeding an annual dose estimate of 5 rem or 10 rem total time in service. Therefore, based on the scientific evidence referenced in the memorandums attached to the Director's advisory opinion, the Director opined that there is no reasonable possibility that the Veteran's melanoma cancer was the result of exposure to ionizing radiation during service. After careful review, the Board finds the January 2021 opinion from the Director to be highly probative. First, the Veteran's exposure levels were relatively low, confirmed by his DD Form 1141. Second, given the very low exposure levels the VA advisory opinion found a correlation to the claimed disability to be unlikely on the basis that exposure was insufficient as confirmed by a review of the record and medical literature. Additionally, there is no medical evidence or opinion in the record linking the Veteran's melanoma to his in-service radiation exposure. Further, the Board has considered the Veteran's lay statements, and the statements in support of his claim. He is competent to report symptoms and what he has directly observed because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. As a result of the above findings, the Board finds that entitlement to service connection for a malignant melanoma due to ionizing radiation exposure is not established. Although it is conceded that the Veteran was exposed to ionizing radiation in service and dose estimates were obtained, the probative opinions of record reflect that it was unlikely that the Veteran's disabilities were attributable to this exposure. Accordingly, his claims must now be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The medical evidence of record shows a currently diagnosed disability of malignant melanoma and as was discussed in detail above, it is conceded that the Veteran was exposed to ionizing radiation in service. However, there is no causal relationship between the Veteran's present disability and his exposure to radiation in service. The Board notes again that the Veteran's service treatment records were silent for complaints of or treatment for melanoma. Furthermore, there is no competent evidence or opinion otherwise suggesting that a medical nexus exists between the current melanoma disability and the Veteran's service. As noted above, in January 2021, the Director concluded since the Veteran's radiation dose of .229 rem did not exceed 10 rem above natural background it was unlikely that his melanoma was caused by ionizing radiation exposure during military service. The Board assigned positive probative weight to the Director's opinion because it considered the Veteran's medical history, the nature of his exposure to ionizing radiation, and the radiation dose information when finding that it was unlikely that his melanoma could be related to his active duty service. Accordingly, the preponderance of the evidence weighs against the finding of service connection for the Veteran's melanoma on a direct basis. Additionally, regarding the Veteran's claim of service-connection on a secondary basis, as noted above the October 2015 VA examiner after an in-person examination, and a review of the available evidence, opined that the Veteran's melanoma was less likely than not etiologically related to his service-connected benign skin growth. The Board weighs this VA examination against the Veteran's lay contentions that his melanoma disability is due to his service-connected benign skin growth. While the Veteran is competent to testify to his symptoms, he is not competent to provide a medical opinion as to the etiology of his disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds the October 2015 VA examination, which opined against a link between the Veteran's currently diagnosed melanoma and his service-connected benign skin growth, to be of high probative value. Thus, the probative evidence of record preponderates against the Veteran's claim for service connection. In light of the above discussion, service connection for a melanoma disability, claimed as secondary to service-connected benign skin growth, must be denied. Additionally, the Veteran's claim for service connection as due to ionizing radiation exposure must also be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the record includes no competent, probative evidence establishing required elements of the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.