Douglas v. Derwinski

2 Vet. App. 103, 1992 U.S. Vet. App. LEXIS 28, 1992 WL 13806
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 24, 1992
DocketNo. 90-678
StatusPublished
Cited by55 cases

This text of 2 Vet. App. 103 (Douglas v. Derwinski) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Douglas v. Derwinski, 2 Vet. App. 103, 1992 U.S. Vet. App. LEXIS 28, 1992 WL 13806 (Cal. 1992).

Opinion

STEINBERG, Associate Judge:

This case is properly before the Court under 38 U.S.C. §§ 7252, 7266 (formerly §§ 4052 and 4066) and involves an appeal by Navy veteran Charles M. Douglas, from a March 23, 1990, Board of Veterans’ Appeals (BVA or Board) decision denying service connection for basal-cell carcinoma of the neck. The veteran claims that this disease and others from which he suffers resulted from his exposure at the conclusion of World War II to ionizing radiation from the atomic bomb site at Hiroshima. In addition, during a February 6, 1990, hearing before the BVA, the veteran’s representative urged that, alternatively, the Board consider the issue of direct service connection for the appellant’s carcinoma based on excessive exposure to the sun during his tenure as a deckhand in the Pacific Theater. The Board did not address this issue in its decision. We hold that the Board erred in its failure to address the issue of direct service connection and in its failure to apply the correct standard in its review of the causal relationship between the veteran’s exposure to ionizing radiation and his subsequent development of basal-cell carcinoma of the neck. We also hold that the Board failed in several respects to carry out its statutory duty to assist the claimant. For the reasons stated below, we vacate the Board’s decision, re[105]*105tain jurisdiction, and remand the record for readjudication and proceedings consistent with this opinion.

I. BACKGROUND

The veteran served on active duty in the United States Navy from May 28, 1945, to May 21, 1946. R. at 7-8. During the bulk of this time he served aboard the USS Gainard, while it was stationed in the Pacific Theater from the early fall of 1945 through the spring of 1946. R. at 7, 64. The veteran testified under oath, at his February 6, 1990, hearing before the BVA, that throughout his service aboard the USS Gainard and, prior to that time, aboard the USS Admiral W.S. Benson, he served as a deckhand, performing “the basic work on the ship” — manning the guns, chipping, painting, and bringing in the anchors. R. at 104, 105.

He further testified to the BVA that while stationed in Japan he was transported two times to the atomic bomb site at Hiroshima. R. at 91. The veteran further testified that immediately after his discharge from service he began to experience skin ailments. He noticed “red places” and “scabby areas” on his face. R. at 107. He recounted that in the 1950s his physician removed what the veteran believed was a cancerous growth from his neck. R. at 97. In addition, he recalled, although he could not furnish dates, that a cancerous growth was removed from his eyelid and another from his lower back. R. at 100, 103-104, 106. The record does not contain any medical records pertinent to these assertions.

The veteran’s skin problems also included the development on his neck of a basal-cell carcinoma (“an epithelial tumor that seldom metastasizes but has potentialities for local invasion and destruction” (Dorland’s Illustrated Medical Dictionary 272 (27th ed. 1988) (Dorland’s)) which was excised by a private physician in 1973. In a letter dated September 15, 1987, the physician, Dr. Abraham stated in pertinent part:

On October 2,1973 a basal cell carcinoma was excised from the right neck. He has also sun damaged skin ... along with an occasional actinic keratosis [“a sharply outlined, red or skin-colored, flat or elevated” rough or warty growth which “may give rise to a squamous cell carcinoma ... and is caused by excessive exposure to the sun” (Dorland’s at 875)].

R. at 51.

On several occasions between 1984 and 1986, a private physician, Dr. Yarbrough, diagnosed the appellant as having numerous “actinic keratoses”. They appeared twice in 1984 on his scalp, forehead, cheeks, neck, and the left side of his nose. In 1985, the actinic keratoses persisted in these areas, as well as the chest and right ear. In 1986, such growths were again diagnosed on the appellant’s forehead, ears, nose, lip, and back. On each occasion, Dr. Yarbrough removed the actinic keratoses using “cryosurgery” (“destruction of tissue by the application of extreme cold” (Dorland’s at 403)). R. at 40.

The veteran testified under oath to the BVA that there is no family history of skin problems or skin cancer. R. at 47, 94. Moreover, with regard to his lifestyle after service, he testified:

I came back and I was a rate clerk and a dispatcher for a trucking company. That is inside work of course. And then I went to Marshall University and I graduated from there. Then I worked for the International Nickel Company. I worked for them for 26 years. I was their inside supervisor for their inside sales personnel. This went on until I was disabled 13 years ago.

R. at 96. In response to a question from a panel member, he indicated that his exposure to the suii after discharge was “no more than the average inside office worker.” R. at 97.

In addition to the skin problems that the veteran developed after his discharge from the service, he acquired a variety of other impairments that he claims are service-connected. On June 23, 1987, the veteran reopened a claim for service connection based on “radiation exposure” with regard to all of these impairments. R. at 49. (In August 1986, the veteran had filed a similar claim (R. at 16); although the record does [106]*106not reflect the disposition of that claim, it seems fair to assume that it was denied). The Veterans’ Administration (now the Department of Veterans Affairs) (VA) Regional Office (RO) denied his claim in a rating decision dated August 12,1987. The BVA has remanded these other claims to the originating agency. Charles M. Douglas, BVA 89-03499 (hereafter Douglas), at 2 (Mar. 23, 1990).

Subsequent to the August 12, 1987, rating decision, the RO reopened the veteran’s claim after receiving Dr. Abraham’s letter indicating the sun-damaged skin, the occasional actinic keratosis, and the removal of the basal-cell carcinoma from the neck. R. at 51. It requested and obtained from the Defense Nuclear Agency (DNA) a report analyzing the level of radiation to which the veteran was exposed at Hiroshima. R. at 64. The report stated that a scientific dose reconstruction had determined that the maximum possible radiation dose received externally, inhaled, or ingested by an individual at either Hiroshima or Nagasaki for the full duration of the occupation, under the worst-case scenario, equaled less than one rem. Based on this finding, it concluded that the “great majority” of occupation forces probably received no radiation exposure. Ibid.

Ultimately, the VA’s Chief Benefits Director (CBD), in an undated letter to the RO, concluded, pursuant to 38 C.F.R. § 3.311(c)(l)(ii) (1991), that there was “no reasonable possibility that the veteran’s disability was the result of such exposure.” R. at 69. In a rating decision, dated April 18, 1989, the RO again denied the veteran’s claim, stating that the sole issue for consideration was “basal cell carcinoma of the skin secondary to exposure to ionizing radiation.” R. at 73. In the Statement of the Case, the RO stated in its “Reasons FoR Decision”:

A well-known risk factor in the development of basal cell carcinoma is exposure to the sun.

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Bluebook (online)
2 Vet. App. 103, 1992 U.S. Vet. App. LEXIS 28, 1992 WL 13806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/douglas-v-derwinski-cavc-1992.