Citation Nr: 0005307 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-12 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for melanoma and other skin cancers, including squamous cell carcinoma of the skin, as secondary to exposure to ionizing radiation, mustard gas, or otherwise. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Salari, Associate Counsel INTRODUCTION The appellant had active duty service from November 1940 to October 1946. This appeal was initially before the Board of Veterans' Appeals (Board) from a decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. By means of a November 1998 order, the Board remanded this case for further development. Additional development has been accomplished and the case has been returned to the Board. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The appellant suffers from various forms of skin cancer, to include squamous cell and basal cell carcinoma. 3. The appellant had full body exposure to mustard gas during service. 4. The appellant was not exposed to ionizing radiation in service. 5. Skin cancer (other than squamous cell carcinoma), was first shown many years after service and is not related to any injury or event in service. CONCLUSIONS OF LAW 1. Squamous cell carcinoma was incurred as a result of service. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1112, 1113, 1131, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.316 (1999). 2. Skin cancer, other than squamous cell carcinoma, was not incurred in service, may not be presumed to have been incurred in service, and was not incurred due to ionizing radiation exposure in service. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1112, 1113, 1131, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION EVIDENCE Initially, 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. The record indicates that he has alleged exposure to ionizing radiation and that he suffers from skin cancer, which is a radiogenic disease. 38 C.F.R. § 3.311. In addition, he has reported exposure to mustard gas and suffers from squamous cell carcinoma, which is a presumptive disease under the vesicant agent regulation. 38 C.F.R. § 3.316. Given these facts, the Board finds sufficient evidence to for a well-grounded claim under the relaxed standards set forth under 38 C.F.R. §§ 3.311 and 3.316. See, generally, Pearlman v. West, 11 Vet. App. 443 (1998). The Board further finds that all relevant facts have been properly developed, and that the duty to assist, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. The appellant contends that he was exposed to mustard gas and radiation during active duty service and that as a result, he now suffers from various forms of skin cancer. Current medical evidence shows that he has in fact been diagnosed with various forms of skin cancer, to include squamous cell carcinoma and basal cell carcinoma. It is noted that in a letter dated in January 1998 (it appears that the letter should have been dated in 1999, rather than 1998), the RO requested that the appellant provide specific information as to his exposure to radiation. The appellant failed to respond to this request. In March 1999, the RO submitted a request to the Defense Threat Reduction Agency (DTRA) for information as to the appellant's exposure to radiation, providing DTRA with available information (his name, serial number, social security number, and military units of assignment). In a response letter dated in April 1999, DTRA advised that it was unable to process the inquiry because the appellant had not specified the source of his radiation exposure. In a statement of the case dated in May 1999, the RO advised the appellant that DTRA was unable to provide any information concerning him. He did not submit any additional information pertaining to his claimed exposure to radiation. Records from the U.S. Army Soldier and Biological Chemical Command (ASBCC) indicate that from February to March 1941, the veteran attended the Unit Gas Officers' Course at the Edgewood Arsenal in Maryland. A description of the course record indicates that there were various field exercises, to include gas chamber exercises. A letter from ASBCC, dated in April 1999, indicates that he was involved solely in training, not experiments. His training may have involved the gas chamber exercise (which used tear gas or chlorine) or various other exercises, one of which included the following: Set, Gas Identification, Detonation, M1 - This set consists of 48 sealed pyrex glass tubes, each 1 inch in diameter, 7 1/2 inches long, each containing approximately 1 ounce of the agent or a solution of the agent. Twelve tubes each of mustard gas, lewisite, phosgene, and chlorpicrin are provided. The amount of agent in the tubes is sufficient to produce an easily identifiable odor when detonated. Method of use - This set is intended for use outdoors and will be found valuable in training individuals to identify chemical agents[.] Trainees were instructed prior to use of the set. They were given the following set of instructions prior to each gas being fired: To breathe deeply. To exhale partially. If the wind is shifting, to walk into the cloud when the gas is fired. TO SNIFF - just enough to recognize the odor. To walk out of the cloud to the flank and then exhale. LAW AND ANALYSIS Service connection may be established for a current disability in several ways including on a "direct" basis. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303(a), 3.304. Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d). A chronic disease manifested to a compensable degree within one year after separation from service will be considered to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. Establishing direct service connection for a disability which has not been clearly shown in service requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303(d); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection for a disease based on radiation exposure can be established under 38 C.F.R. § 3.311. Under the relevant provisions of 38 C.F.R. § 3.311, it is stipulated that in all claims in which it is established that a radiogenic disease first became manifest after service, and it is contended that the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose. For purposes of this section the term "radiogenic disease" includes all forms of cancer. 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. 38 C.F.R. § 3.311 Pursuant to 38 C.F.R. § 3.316, service connection may be established for the development of certain claimed conditions when there was exposure to specified vesicant agents during active military service. When there was full- body exposure to nitrogen or sulfur mustard gas during active service, the listed conditions are chronic conjunctivitis, keratitis, corneal opacities, scar formation, nasopharyngeal cancer, laryngeal cancer, lung (except mesothelioma) cancer and squamous cell carcinoma of the skin. When there was full-body exposure to nitrogen or sulfur mustard or Lewisite during active service, the listed conditions are chronic laryngitis, chronic bronchitis, chronic emphysema, chronic asthma or chronic obstructive pulmonary disease. When there was full- body exposure to nitrogen mustard during active service, the listed condition is acute nonlymphocytic leukemia. Service connection may not be established for any of these conditions if the claimed condition is due to the veteran's own willful misconduct or if there is affirmative evidence that establishes a nonservice-related condition or event as the cause of the claimed condition. 38 C.F.R. § 3.316. Having considered the evidence of record, the Board finds that service connection for squamous cell carcinoma is warranted. The record indicates that there is the likely possibility that the veteran walked through a cloud of mustard gas or a solution of the agent and that he developed squamous cell carcinoma. Resolving any doubt in favor of the veteran, the Board finds that this constitutes full body exposure. As squamous cell carcinoma is a presumptive disease under 38 C.F.R. § 3.316, service connection is warranted. The Board does not find that service connection can be granted for any other form of skin cancer. First, entitlement does not exist under 38 C.F.R. § 3.316; no other form of skin cancer (other than squamous cell) is considered a presumptive disease under this regulation and no medical link between mustard gas exposure and other forms of skin cancer has been submitted. Second, there is no indication that any form of skin cancer was shown during service or during the one-year presumptive period. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. Further, there is no medical evidence of record linking any form of skin cancer (other than squamous cell) to service. Moreover, other than the veteran's assertions, there is no evidence of record which shows that he was in fact exposed to ionizing radiation in service. In particular, it is noted that the RO requested certain specific information regarding his exposure in service and that he failed to provide the requested information. Accordingly, exposure to ionizing radiation in service could not be verified. Given that there is no evidence of any form of skin cancer in service or within one year after separation, that there is no medical nexus between any form of skin cancer (again, other than squamous cell) and any injury or disease in service, and given that there is no verification of exposure to ionizing radiation in service, service connection for all other forms of skin cancer, other than squamous cell carcinoma, is denied. ORDER Entitlement to service connection for squamous cell carcinoma is granted. Entitlement to service connection for all forms of skin cancer, other than squamous cell carcinoma, is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals