Citation Nr: 0000150 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 95-30 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for residuals of facial burns. 2. Entitlement to service connection for skin cancer, to include as a result of radiation exposure. 3. Entitlement to service connection for eye disability, including cataracts, to include as a result of radiation exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran had active service from October 1940 to November 1946. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. The veteran timely appealed that determination to the Board. In June 1998, the Board remanded the case to the RO for further development. Following accomplishment of some of the requested development, the RO continued the denial of the issues on appeal, and those claims have since been returned to the Board for further appellate consideration. The Board's decision on the claims for service connection for residuals of facial burns and for skin cancer is set forth below. However, the claim for service connection for eye disability is addressed in the REMAND following the ORDER portion of the decision. FINDINGS OF FACT 1. The veteran served in the South Pacific in combat in World War II as a member of the American occupation forces in Japan following World War II, and was present in the VA- defined Hiroshima area from November 27, 1945, to December 30, 1945. 2. There is no competent medical evidence of a nexus between the veteran's currently diagnosed sun damaged facial skin, to include actinic keratosis, and service. 3. It has been presumed from evidence of record that the appellant was exposed to a dose of ionizing radiation during service of less than one rem. 4. The medical evidence shows that basal cell carcinoma was first manifested in 1976, many years after the appellant's exposure to ionizing radiation. 5. Basal cell carcinoma is not among the cancers for which the Secretary has determined is entitled to a presumption of service connection based upon exposure to ionizing radiation. 6. While skin cancer is considered a "radiogenic" disease, the VA Chief Public Health and Environmental Hazards Officer has opined that it is unlikely that the veteran's skin cancer is attributable to exposure to ionizing radiation during service. 7. There is no competent evidence of a nexus between basal cell carcinoma and any incident of service, to include exposure to ionizing or microwave radiation therein. CONCLUSIONS OF LAW 1. The claim for service connection for residuals of facial burns, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for skin cancer, to include basal cell carcinoma, either on a direct basis or as due to exposure to ionizing radiation during service, is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background The veteran contends that service connection is warranted for residuals of facial burns on a direct basis. In addition, he contends that service connection is warranted for skin cancer to include basal cell carcinoma, on a direct basis or as due to exposure to ionizing radiation during service. The Board notes that lay statements from the veteran's wife and brother essentially indicate that the veteran suffered burns to his face in an explosion during service. Likewise, in correspondence of record and during his personal hearing, the veteran testified that during his service in the Navy, there was an explosion aboard the ship where he was stationed. He asserted that his face was burned during this explosion and in the ensuing hours afterwards by the sun when he was forced to abandon ship and remain in the ocean until he was rescued. Alternatively, as noted, the veteran maintained that he was exposed to radiation during service and this exposure resulted in facial burns and skin cancer. The Board will initially review the common medical history with regard to the veteran's service connection claims. The service medical records are completely negative for any complaints, clinical findings, or diagnosis of skin cancer or of facial burns to the face. Following service, the veteran was first treated for basal cell carcinoma in 1976. Thereafter, the veteran received further treatment for basal cell carcinoma during the mid to late 1990's. In addition, VA outpatient records dated in the 1990's shows that the veteran has extensive sun damage to his face to include actinic keratosis. In June and August 1997, letters were sent to the Defense Nuclear Agency (DNA) requesting dosimetry information for the veteran's participation in the occupational forces of Hiroshima, Japan. It was noted that the veteran's duties and activities while he was a participant in a radiation risk activity were water tender on the U.S.S. Compton (DD 705) while at Hiroshima, Japan. In reply, the DNA indicated that the maximum possible radiation dose that might have been received by any individual who was at either Hiroshima or Nagasaki for the full duration of the American occupation was less than one rem. It was noted that this did not mean that any individual approached that level of exposure. Thereafter, the veteran's case was referred to the VA Under Secretary for Health by the Director of Compensation and Pension Service. In the letter, the Director of Compensation and Pension Service stated that the veteran had been originally diagnosed with basal cell carcinoma of the skin in September 1976. He further indicated that the DNA reported that Naval records confirmed that the veteran was a member of the American occupation forces in Japan following World War II and was present in the VA-defined Hiroshima area from November 27, 1945 to December 30, 1945 (although this date was mistyped as "1995"). The Director of Compensation and Pension Service indicated that a scientific dose reconstruction determined that the maximum possible radiation does that might have been received by anyone in Hiroshima for the full duration of the American occupation (September 1945 to March 1946) was less than one rem. The Director of Compensation and Pension Service stated that at the time of the exposure, the veteran was 27 years old; thereafter, he was diagnosed with skin cancer 31 years later. It was noted that skin cancer is not a presumptive disease under 38 C.F.R. § 3.309(d) for radiation-exposed veterans. A medical opinion was requested as to whether it was likely, unlikely, or at least as likely as not that the veteran's skin cancer had resulted from exposure to ionizing radiation in service. In reply, the VA Chief Public Health and Environmental Hazards Officer indicated that the CIRRRPC Science Panel Report Number 6, 1988, did not provide screening doses for skin cancer. It was noted that skin cancer had been attributed to ionizing radiation at high doses, e.g., several hundred rads. The Chief Public Health and Environmental Hazards Officer of the VA stated that excess numbers of basal cell cancers had also been reported in skin which received estimated doses of 9-12 rads in margins of irradiated areas (Health Effects of Exposure to Low Levels of Ionizing Radiation (BEIR V), 1990, pages 325 to 327). The VA Chief Public Health and Environmental Hazards Officer opined that it was unlikely that the veteran's basal cell carcinoma was attributable to exposure to ionizing radiation in service. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. However, the threshold question to be addressed with respect to each claim for service connection is whether the claim is well grounded. See 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If not, the claim must fail and there is no further duty to assist in its development. Id.; Murphy v. Derwinski, 1 Vet. App. 78 (1990). This requirement has been reaffirmed by the United States Court of Appeals for the Federal Circuit, in its decision in Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998). That decision upheld the earlier decision of the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") which made clear that it would be error for the Board to proceed to the merits of a claim which is not well-grounded. Epps v. Brown, 9 Vet. App. 341 (1996). In order for claim for service connection to be well- grounded, there must be competent evidence of: (1) a current disability (usually, a medical diagnosis); (2) the incurrence or aggravation of a disease or injury in service (lay or medical evidence, as appropriate); and (3) a nexus (that is, a link or a connection) between the in-service injury or aggravation and the current disability. Competent medical evidence is required to satisfy this third prong. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). "Although the claim need not be conclusive, the statute [38 U.S.C.A. § 5107] provides that [the claim] must be accompanied by evidence" in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links the current disability to a period of military service or to an already service-connected disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Montgomery v. Brown, 4 Vet. App. 343 (1993);Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Although evidence submitted in support of a claim is presumed to be true for purposes of determining whether it is well-grounded, lay assertions of medical diagnosis or causation do not constitute competent evidence sufficient to render a claim well grounded. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The veteran in this case is a combat veteran. Where a combat veteran alleges he suffers disability due to an injury incurred in service, 38 U.S.C.A. § 1154(b) must be considered. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996); Gregory v. Brown, 8 Vet. App. 563 (1996); Caluza. 38 U.S.C.A. § 1154 makes it clear that special considerations attend the cases of combat veterans. In considering claims of veterans who engaged in combat, the adverse effect of not having an official report of an inservice injury or disease can be overcome by satisfactory lay or other evidence which shall be sufficient proof of service occurrence or aggravation if consistent with the circumstances, conditions, or hardships of service. 38 U.S.C.A. § 1154(b). These veterans may prove service connection by "satisfactory lay or other evidence" even in the absence of official records. Section 1154(b) relaxes evidentiary standards so that "satisfactory lay or other evidence" can be used by combat veterans to demonstrate incurrence or aggravation of a disability in service. See Caluza. In Collette, the Court articulated a three-step sequential analysis to be performed when a combat veteran seeks benefits under the method of proof provided by 38 U.S.C.A. § 1154(b). In the first step of the analysis, VA must determine whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." If a veteran produces credible evidence that would allow a reasonable fact-finder to conclude that the alleged injury or disease was incurred in service, then the veteran has produced "satisfactory evidence" to satisfy the first requisite step of analysis under the stated provision. This determination requires the credibility of the veteran's evidence to be judged standing alone and not weighed against contrary evidence. In the second step, the VA must then determine if the proffered evidence is consistent with the circumstances, conditions, or hardships of such service, again without weighing the veteran's evidence with contrary evidence. If these two inquiries are met, the Secretary "shall accept" the veteran's evidence as "sufficient proof of service- connection," even if no official record of such incurrence exists. At this point a factual presumption arises that the alleged injury or disease is service-connected. It is in the third step under Collette, that VA is to weigh evidence contrary to that which established the presumption of service connection. If the VA meets its burden of presenting "clear and convincing evidence to the contrary," the presumption of service connection is then rebutted. The analysis required by 38 U.S.C.A. § 1154(b), however, applies only to the second element of a well-grounded claim under the Caluza test; that is, whether an injury or disease was incurred or aggravated in service. It does not apply to the questions of whether there is a current disability or a nexus connecting the disability to service. Caluza; Collette. Competent evidence is required to establish the veteran's current disability and the nexus connecting that disability to an in service injury or disease. That is, the veteran must meet his evidentiary burden with respect to service connection. Collette. In Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996), the Court recognized that, while § 1154(b) relaxed the evidentiary requirement as to the evidence needed to render a claim well grounded, there is essentially no relaxation as to the question of nexus to service, which requires competent medical evidence. At the outset, the Board notes that the veteran, his wife, and brother are lay persons without appropriate medical training and expertise; as such, their assertions regarding medical causation are not probative because lay persons are not competent to offer medical opinions. See Moray v. Brown, 5 Vet. App. 211 (1993); Grottveit, Vet. App. at 93; Espiritu, 2 Vet. App. at 494-5. The Board will consider the record in order to ascertain if their assertions are supported by the competent medical evidence in this case. A. Service Connection for Residuals of Facial Burns Given the veteran's combat service, the service records, the lay evidence of record as well as the directives of Collette, the Board finds that the veteran's report of suffering injury in an explosion during service is accepted as credible. Thus, the Board must consider if there is current disability as well as a nexus between the in-service injury and current disability. The Board observes that while the post-service medical records show recent diagnosis of sun damaged facial skin to include actinic keratosis, there is no medical evidence showing that there is any relationship whatsoever between service and current skin disability. Thus, as there is no competent medical evidence establishing a nexus between current disability and service, all of the criteria of Caluza have not been met. As such, the claim for service connection for residuals of facial burns is not plausible, and must be denied as not well grounded. B. Service Connection for Skin Cancer, To Include as a Result of Radiation Exposure Diseases specific to radiation-exposed veterans, such as various forms of cancers, listed under 38 C.F.R. § 3.309(d), will be presumed to have been incurred in active service if the veteran participated in a "radiation risk activity" such as onsite participation in an atmospheric nuclear test. 38 C.F.R. § 3.309(d)(3)(ii). Other "radiogenic" diseases, such as any form of cancer, listed under 38 C.F.R. § 3.311(b)(2), found 5 years or more after service in an ionizing radiation exposed veteran may be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. Service connection may also be granted for disability based on exposure to ionizing radiation, like all disabilities, when there is specific medical evidence linking it to such incident. Combee v. Brown, 34 F.3d 1039, 1043- 45 (Fed. Cir. 1994). Thus, service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. First, there are certain types of cancer that are presumptively service- connected if they become manifest in a radiation-exposed veteran. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service-connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as either a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or 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 occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(b)(i), (ii). 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation, and does not refer to any other types of radiation exposure. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. "Radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes the following: thyroid cancer, breast cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2)(i)-(xxiv). Section 3.311(b)(5) requires that bone cancer become manifest within 30 years after exposure, and that prostate cancer become manifest 5 years or more after exposure. 38 C.F.R. § 3.311(b)(5). The Board (like the RO) has carefully reviewed this appeal under all three of the legal theories by which service connection could be granted for the veteran's skin cancer. First, as noted above, the claimed disability is not included in the list of conditions that may be presumptively service- connected by an individual who participated in a radiation- risk activity, as set forth at 38 C.F.R. § 3.309(d). Secondly, although skin cancer is included in the list of "radiogenic" diseases at 38 C.F.R. § 3.311(b), that regulation does not create a presumption of service connection, but merely accords the claimant special processing of the claim. Such processing "still requires a case-by-case determination of service connection for each claim based on one of the listed diseases." Ramey v. Gober, 120 F.3d 1239, 1245 (Fed. Cir. 1997). The RO undertook and completed the special development mandated by the regulation, and the Board finds that the opinion of the Chief Public Health and Environmental Hazards Officer of the VA was supported by the evidence of record which does not contradict that opinion. Moreover, the competent medical evidence of record showed that a diagnosis of basal cell cancer was not noted until 1976, or over 30 years after service. Thirdly, the Combee/Ramey analysis includes the traditional approach to service-connection claims, i.e., adjudicating the issue of causation in service on a direct basis. However, in the instant case, the conclusion of the VA Chief Public Health and Environmental Hazards Officer, a physician who reviewed all of the pertinent evidence, contradicts, rather than supports, the contentions and oral testimony of the veteran and there is otherwise no competent evidence of record establishing a nexus between a current skin disability and exposure to radiation or any other incident of service. In the absence of competent medical evidence of a nexus between skin cancer and service (to include exposure to radiation therein), there is no basis upon which the Board can conclude that the veteran's basal cell carcinoma is attributable to in-service radiation exposure or other incident of service. C. Conclusion For all the foregoing reasons, the Board concludes that the veteran has failed to submit a well-grounded claim for facial burns or for skin cancer. As such, VA is under no duty to assist the veteran in developing the facts pertinent to either claim. See Epps, 126 F.3d at 1468. Furthermore, the Board is aware of no circumstances in this matter that would put the VA on notice that any additional relevant evidence may exist which, if obtained, would well-ground either claim of entitlement to service connection. See McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). While, with respect to claims that are not well-grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). A review of the correspondence in this case shows that the RO fulfilled its obligation under 38 U.S.C.A. § 5103(a) (West 1991) as the veteran was fully informed of the reason for the denial of his claims and was advised of what evidence was needed in order to support his claims. ORDER The issues of entitlement to service connection for residuals of facial burns and for skin cancer to include as a result of radiation exposure, are denied as not well grounded. REMAND In the Board's prior remand, it was noted that with regard to the veteran's service connection claim for skin cancer and residuals of facial burns, the veteran had included contentions regarding service connection for eye disability and had submitted evidence showing treatment for eye disability. At this point, the Board notes that this evidence shows treatment for cataracts. According to pertinent VA regulation, a posterior subcapsular cataract is a radiogenic disease. The period specified for the development of posterior cataracts is six months or more after exposure. 38 C.F.R. § 3.311(b)(5)(iii). It is unclear from the record if all of the veteran's treatment records from the Wilmington VA Medical Center eye clinic are of record. Moreover, it is unclear of the veteran's cataract treatment was for posterior subcapsular cataracts. In Bell v. Derwinski, 2 Vet. App. 611 (1992) (per curiam order), the Court held that VA has constructive notice of VA-generated documents that could "reasonably" be expected to be part of the record and that such documents are thus constructively part of the record before the VA even where they were not actually before the adjudicating body. The Board concludes that all the VA records which are not currently in the claims file should be obtained prior to readjudication of the claim, to include a determination as to whether the claim is well- grounded. The Board notes that if upon reviewing the medical records, the RO determines that the veteran did receive treatment for posterior subcapsular cataracts, the RO should request an opinion from the Under Secretary for Health from the Director of Compensation and Pension Service regarding whether it is likely, unlikely, or at least as likely as not that the veteran's current eye disability resulted from exposure to ionizing radiation in service. Although an opinion was previously sought from the Under Secretary for Health from the Director of Compensation and Pension Service, that opinion was limited to skin cancer. Likewise, the RO did not specifically consider if the veteran has posterior subcapsular cataracts, and, if so, if such disability is related to his radiation exposure during service. The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet. App. 268 (1998). Although the instructions in this remand should be carried out in a logical chronological sequence, no instruction in this remand may be given a lower order of priority in terms of the necessity of carrying out the instructions completely. Accordingly, this matter is hereby REMANDED for the following action: 1. The RO should obtain and associate with the claims file copies of all clinical records, which are not already in the claims file, of the veteran's treatment at the Wilmington VA Medical Center eye clinic. If any such requested records are not available or nonexistent, that fact should clearly be documented in the veteran's claims file. 2. If upon reviewing the medical records, the RO determines that the veteran did receive treatment for posterior subcapsular cataracts, the RO should request an opinion from the Under Secretary for Health from the Director of Compensation and Pension Service regarding whether it is likely, unlikely, or at least as likely as not that the veteran's current eye disability resulted from exposure to ionizing radiation in service. 3. The RO should readjudicate the veteran's claim for entitlement to service connection for eye disability to include cataracts to include as a result of radiation exposure in light of all relevant evidence received (to include that referred to above) and all pertinent legal authority. The RO should provide clear reasons and bases for its decision, addressing all issues raised in this REMAND. 4. If the action taken is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case (that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations), and be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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. JACQUELINE E. MONROE Member, Board of Veterans' Appeals