Citation Nr: 0005480 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 96-03 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for basal cell carcinoma due to exposure to ionizing radiation. 2. Entitlement to an increased rating for cervical plexus neuralgia with traumatic arthritis of the cervical spine and psychophysiologic musculoskeletal disorder, currently evaluated as 40 percent disabling. 3. Entitlement to a total rating based on individual unemployability due to service connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Salari, Associate Counsel INTRODUCTION The appellant had active duty service from November 1947 to March 1957. In March 1957, he was temporarily retired due to physical disability. He was removed from temporary retired list and permanently retired in August 1958. This appeal was initially before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied the appellant's claims for service connection for Forestier's disease, as well as an increased rating (above 40 percent) for cervical plexus neuralgia with traumatic arthritis of the cervical spine and psychophysiologic musculoskeletal disorder, and a total disability rating due to individual unemployability (TDIU). By means of an August 1997 order, the Board remanded the above-mentioned issues for further development. Subsequently, the RO granted service connection for the Forestier's disease; as the benefit sought was granted in full, the matter of service connection for Forestier's disease is considered to have been resolved during the appeal process and is no longer before the Board. While in remand status, the issue of entitlement to service connection for basal cell carcinoma was certified for appellate review. The Board notes that the appellant initially filed a claim for service connection for skin cancer, and that he has been diagnosed with both basal cell and squamous cell carcinoma. The record indicates that the RO has addressed the claim for service connection for basal cell carcinoma only. Thus, the matter of entitlement to service connection for squamous cell carcinoma is referred for adjudication. The issues of entitlement to an increased rating for cervical plexus neuralgia with traumatic arthritis of the cervical spine and psychophysiologic musculoskeletal disorder, and entitlement to TDIU are the subject of the remand portion of this decision. FINDINGS OF FACT 1. Entitlement to service connection for skin cancer was denied by means of a June 1989 rating action and that decision is final. 2. Additional evidence submitted after the June 1989 rating action is neither cumulative nor redundant, and is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The appellant's claim for service connection for basal cell carcinoma due to ionizing radiation exposure is plausible. 4. The appellant's basal cell carcinoma was not present until many years after separation from service and was not caused by exposure to ionizing radiation in service. CONCLUSIONS OF LAW 1. The RO's June 1989 decision to deny service connection for skin cancer is a final determination. The evidence subsequently received is new and material and sufficient to reopen the claim. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. The appellant's claim for service connection for basal cell carcinoma due to exposure to ionizing radiation is well- grounded. 38 U.S.C.A. § 5107 (West 1991). 3. Basal cell carcinoma was not incurred in or aggravated by service, may not be presumed to have been incurred in service, and was not due to exposure to radiation in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.311 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence. The law provides that, except as provided in § 5108, when a claim is disallowed by an agency of original jurisdiction and becomes final, the claim may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim shall be reopened and the former disposition of the claim shall be reviewed. 38 U.S.C.A. § 5108. If new and material evidence has been presented, immediately upon reopening, it must be determined whether, based upon all the evidence of record in support of the claim, the claim as reopened is well-grounded. Winters v. West, 12 Vet.App. 203, 206 (1999) (en banc). For purposes of a well-groundedness analysis, the credibility of the evidence is presumed. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). If a well- grounded claim has been submitted, then the claim must be evaluated on the merits of the claim, but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Winters, at 206; see also Epps v. Brown, 126 F.3d 1464 (Fed.Cir. 1997); cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998). "New and material evidence" means evidence not previously submitted to VA decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant of prior evidence and which, by itself, or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). The evidence of record indicates that a claim for service connection for skin cancer was previously denied by means of a rating decision dated in June 1989. The evidence of record at that time included medical records which indicate that the appellant was first diagnosed with basal cell carcinoma in 1966. The evidence of record at that time also included various Air Force documents which confirm that he was exposed to ionizing radiation in service and provide dose estimates. The appellant was notified of the RO's June 1989 decision, but he did not appeal. Therefore, this rating decision is a final decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a). Evidence added to the record since 1989 include, among others, a medical opinion from the Chief Public Health and Environmental Hazards Officer, dated in July 1998, which indicates that skin cancer usually has been attributed to ionizing radiation at high doses, e.g., several hundred rads. Excess numbers of basal cell cancers also have been reported in skin which received estimated doses of 9-12 rads in margins of irradiated areas. In light of this scientific information, it was determined that it was unlikely that the appellant's basal cell cancer could be attributed to exposure to ionizing radiation in service. A subsequent opinion from the Director, Compensation and Pension Service, dated in July 1998, concluded that in light of the opinion from the Under Secretary for Health, and following a review of the evidence in its entirety, there was no reasonable possibility that the appellant's disability was the result of inservice exposure to ionizing radiation. The Board finds that the additional evidence reported above is new in that it was not previously of record. The Board further finds that the evidence is so significant that it must be considered in that it bears directly on the issue at hand, namely, whether the exposure to radiation in service resulted in the claimed disability; such medical/scientific information bearing on the matter of the relationship between basal cell carcinoma and inservice exposure to radiation was not previously before VA. Accordingly, the Board finds that new and material evidence has been submitted and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156(a). Entitlement to service connection. The record indicates that the appellant was exposed to radiation in service and that he suffers from a radiogenic disease. Thus, the Board finds that this claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, the appellant has presented a claim that is plausible. 38 C.F.R. § 3.311. He has not alleged that any records of probative value that may be obtained and which have not already been associated with his claims folder are available. Accordingly, the Board finds that all relevant facts have been properly developed, and that the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. As noted above, the record indicates that there is a prior final rating action on the issue of service connection for skin cancer. Although the matter of new and material evidence has not been addressed by the RO, prior to adjudicating the claim on the merits, the Board must first address the underlying issue of whether new and material evidence has been submitted to reopen a claim. Barnett v. Brown, 8 Vet.App. 1 (1995). As the RO has decided this case on the merits and provided the appellant with the relevant rules and regulation, and since the Board has reopened and will also proceed with a decision on the merits, there is no prejudice to the appellant. See Bernard v. Brown, 4 Vet.App. 384 (1993). Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991). If a chronic disease such as a malignant tumor is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In addition, service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), affirmed at 120 F.3d. 1239 (Fed. Cir. 1997). First, there are 15 types of cancer which will be presumptively service connected. See 38 U.S.C.A. § 1112c (West 1991); 38 C.F.R. § 3.309(d) (1999). Second, 38 C.F.R. § 3.311(b) (1999) includes a list of "radiogenic diseases" which will be service connected provided that certain conditions specified in that regulation are met. The regulation states that, if the veteran has one of the radiogenic diseases, the case will be referred to the Under Secretary for Benefits for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the veteran's disease resulted from radiation exposure during service. Third, direct service connection can be established by "show[ing] that the disease or malady was incurred during or aggravated by service, a task which includes the difficult burden of tracing causation to a condition or event during service." See Combee v. Brown, 34 F.3d 1039, 1043 (Fed.Cir. 1994). The appellant contends that as a result of his participation in Operation SANDSTONE, he was exposed to ionizing radiation which caused his basal cell carcinoma. He claims that during the test, he was located at Kwajalein Atoll, where he was required to drive tank trucks to the flight line where there were radioactive airplanes. A report from the Defense Special Weapons Agency (DSWA), dated in June 1997, indicates that historical records confirm the appellant's presence at Operation SANDSTONE. He was reportedly assigned to Task Unit 7.4.1. A history of his unit indicates that the personnel were located at Kwajalein and that their duties included, among others, providing supplies and maintenance to other Air Force Task Group 7.4 units. The report indicates that a search of the dosimetry data revealed no record of radiation exposure for the appellant. However, a scientific dose reconstruction showed that he would have received a probable dose of 0.081 rem gamma (upper bound of 0.1 rem gamma). A scientific dose reconstruction titled Neutron Exposure for DoD Nuclear Test Personnel indicates that due to his unit's distance from ground zero, he had virtually no potential for exposure to neutron radiation. Based on these dose estimates, opinions from the Under Secretaries for Health and Benefits, as previously reported, determined that it was unlikely that the appellant's basal cell cancer resulted from inservice exposure to ionizing radiation. The Board notes that during a hearing held before the undersigned in May 1999, the appellant indicated that he underwent a plutonium bioassay and advised that the results of such testing would be submitted as soon as they are available. The results were subsequently submitted in July 1999, along with a written waiver of consideration of the evidence by the agency of original jurisdiction. The plutonium bioassay results, dated in July 1999, indicate that the test did not indicate a positive plutonium contribution from participation in atmospheric nuclear testing. The Board has considered this evidence in accordance with 38 C.F.R. § 20.1304 and finds that the evidence does not effect the outcome of this case. Having considered the evidence in its entirety, as well as the applicable laws, the Board finds that entitlement to service connection for basal cell carcinoma is not warranted. First, the Board notes that this disability was not shown until several years after separation from service. In addition, there is no medical evidence of record which links this disability to service. Thus, service connection on a direct or presumptive basis cannot be granted. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131; 38 C.F.R. § 3.307, 3.309; Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). As for service connection based on radiation exposure, the Board notes that basal cell carcinoma is not one of the 15 presumptive cancers listed under 38 C.F.R. § 3.309. While this disability is considered a radiogenic disease under 38 C.F.R. § 3.311, the record indicates that opinions from the Under Secretaries for Health and Benefits indicate that it was unlikely that the basal cell carcinoma resulted from the appellant's inservice exposure to ionizing radiation. The Board notes that the appellant has indicated that his dose estimate may not be correct because he was in closer proximity (than other unit personnel) to radioactive airplanes; he reported that his duties required him to drive trucks onto the flight line in order to deliver supplies used to decontaminate the airplanes. However, this evidence was considered by DSWA as records from DSWA show that his unit's duties included providing supplies and maintenance to other units. Thus, the Board concludes that the dose estimate provided by DSWA is accurate. In summary, the Board finds that the evidence of record does not show that the ionizing radiation he received in service caused his basal cell carcinoma. Accordingly, the claim is denied. ORDER Entitlement to service connection for basal cell carcinoma is denied. REMAND The Board notes that the appellant has been awarded service connection for Forestier's disease and that his cervical plexus neuralgia with traumatic arthritis of the cervical spine and psychophysiologic musculoskeletal disorder as well as his Forestier's disease have all been rated together as one disability under diagnostic codes 8710-5287. However, separate conditions that do not constitute "the same disability" or "same manifestation" under 38 C.F.R. 4.14 can be rated separately under 38 C.F.R. 4.25, provided that the Diagnostic Codes involved do not specifically preclude the claimant being rated separately for the described conditions. See Esteban v. Brown, 6 Vet.App. 259, 261 (1994). The Board thus finds that prior to further consideration of the matter of increased rating and entitlement to a total disability rating due to unemployability, it is necessary that neurological and orthopedic examinations be conducted to determine the nature and severity of each component of this disability/disabilities in order to determine whether separate ratings may be assigned for the various manifestations of this condition. Accordingly, this case is REMANDED for the following: 1. The appellant should be afforded VA orthopedic and neurologic examinations to determine the current nature and severity of his cervical plexus neuralgia with traumatic arthritis of the cervical spine and psychophysiologic musculoskeletal disorder, as well as Forestier's syndrome. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner(s), to include complete range of motion studies, should be accomplished and the results included in the claims file. The examiner is requested to report the symptomatology associated with each component of the disability, to include the symptoms associated with Forestier's syndrome in each segment of the spine, as well as cervical plexus neuralgia, traumatic arthritis of the cervical spine and psychophysiologic musculoskeletal disorder. The examiner should report complaints and clinical findings in detail. The examiner(s) should also state whether the appellant is rendered unemployable as a result of his service- connected disabilities. The claims file must be made available to the examiner for review. 2. When the development requested above has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. The RO should consider awarding separate ratings for different manifestations of symptoms associated with the cervical plexus neuralgia with traumatic arthritis of the cervical spine and psychophysiologic musculoskeletal disorder, and Forestier's disease, under the applicable rating criteria. See Esteban v. Brown, 6 Vet.App. 259 (1994). The RO should then readjudicate the claim for total rating due to unemployability. If the benefits sought on appeal are not granted, the appellant and his representative should be furnished a supplemental statement of the case, and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. CONSTANCE B. TOBIAS Member, Board of Veterans' Appeals