Citation Nr: 0324582 Decision Date: 09/23/03 Archive Date: 09/30/03 DOCKET NO. 02-07 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for residuals of removal of actinic keratosis from the left cheek. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The veteran served on active duty from July 1976 to July 1979 and from April 1980 to April 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2000 rating determination of the Los Angeles, California, and Department of Veterans Affairs (VA) Regional Office (RO). In September 2002, the veteran, sitting at the RO, testified in a videoconference hearing with the undersigned sitting in Washington, D.C. At the time of his September 2002 hearing, the veteran withdrew his claims of entitlement to service connection for recurring chest pains, a positive PPD converter reading and a left knee condition. In a March 2003 decision, the Board dismissed the veteran's claims as to these matters. FINDING OF FACT The objective and competent medical evidence of record demonstrates that actinic keratosis of the left cheek, and residuals therefrom, is related to the veteran's active military service. CONCLUSION OF LAW Actinic keratosis of the left cheek, and residuals therefrom, was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5100-5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background A review of the veteran's service medical records demonstrates that at the time of an April 1991 clinical visit he complained of a flat mole on the left side of his face that had doubled in size over the past year. Examination of the mole revealed that it was smooth and homogenous with a brown color. It measured approximately 1 x .5 centimeters in diameter. At the time of a May 1991 surgical consultation, the veteran was again noted to have a mole on his left cheek. A diagnosis of skin mole left cheek R/O (with a need to rule out) skin keratosis was rendered. An excision was scheduled. On May 29, 1991, the veteran's left cheek skin mole was excised. A biopsy of the mole revealed actinic keratosis of the skin, moderately severe, hyperpigmented. At the time of his October 1996 retirement examination, the veteran was noted to have a 2.5 centimeter scar on his left chin/cheek area. Post service, a September 1997 VA examination report is not referable to scars or deformities of the head or face. In February 1999, the RO received the veteran's claim for service connection for actinic keratosis of the left cheek. A February 1999 VA outpatient treatment record reflects the veteran's report of a skin lesion on his left temple that was removed in service and identified as actinic keratosis that recently developed discoloration and since sloughed. In his August 2000 notice of disagreement, the veteran reported that he had a keratosis removed from his chin in May 1991. He stated that it came back and had to be removed again. In a February 2001 written statement in support of his claim, the veteran again reported that he had a keratosis removed from his left cheek area. In his May 2002 substantive appeal, the veteran reported that he had a scar where the surgery was performed. He further noted that the keratosis returned and continued to grow. At his September 2002 videoconference hearing, the veteran testified that he started getting a growth on his left cheek right next to his eye during his period of service. He stated that the growth was removed and that he had no further problems with it for several years. He reported that within the past few years the growth had returned. He noted having a scar from the surgery but testified that the scar had become somewhat obscured by the regrown keratosis. The veteran reported that he did not have any medical records that documented the regrowth. In March 2003, the Board ordered additional development on this matter, to include a VA examination, to determine the nature and etiology of any skin disorder of the left cheek. The VA examiner was requested to render an opinion as to whether it was at least as likely as not that any currently diagnosed left cheek disorder, including actinic keratosis or residuals therefrom, was caused by the veteran's military service or whether such an etiology or relationship was less than likely. In June 2003, the veteran underwent VA examination. According to the examination report, the VA examiner reviewed the veteran's medical records. The veteran was noted to have been stationed in the Persian Gulf from August 1990 to April 1991. After his return, he noted a skin growth on the left maxillary area near his left eye. He sought medical attention on April 23, 1991, and a diagnosis of R/O skin neoplasm was rendered. A biopsy was done on May 29, 1991, and the lesion was found to be actinic keratosis of the skin, moderately severe, and hyperpigmented. Further, the VA examiner indicated that the veteran recently noted a recurrence of the lesion in the same area as the one biopsied in May 1991 as well as some other hyperpigmented areas on his face. The veteran sought treatment from a private physician who biopsied the area and found it to be actinic keratosis. The area on the veteran's face that was surgically excised in 1991 was noted to have a very fine barely visible 4-centimeter scar located just below and lateral to the left eye. Physical examination revealed no visible lesions or hyperpigmented areas on the veteran's face. There was a very thin barely visible 4-centimeter scar just below and lateral to his left eye. There was no visible disfigurement of the face. The VA examiner noted that the biopsy in the file dated May 29, 1991, found actinic keratosis of the skin, moderately severe with hyperpigmentation. He further observed that there was another biopsy result done by the veteran's private physician in December 2002 with the results identifying actinic keratosis with adjacent solar lentigo. It was the VA examiner's opinion that it was at least as likely as not that the veteran's actinic keratosis was the result of exposure to the sun while serving in the Persian Gulf. II. Analysis A. Veterans Claims Assistance Act In November 2000, during the pendency of this appeal, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. § 5103 (West 2002)). VA has long recognized that the Department has a duty to assist the veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.103(a) (2002). The recent changes in law have amended the requirements as to VA's development efforts in this, and other pending cases, modifying and clarifying VA's duty to assist a claimant in evidentiary development. See VCAA, supra. See generally Holliday v. Principi, 14 Vet. App. 280 (2001), overruled in part on other grounds, Kuzma v. Principi, ___ F.3d ___, No. 03-7032 (Fed. Cir. Aug. 25, 2003). In addition, VA has published new regulations to implement many of the provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2002)). In view of the favorable disposition of this appeal, discussed below, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertaining to his claim, under both former law and the VCAA. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2002); VCAA § 4, 114 Stat. 2096, 2098-99 (codified as amended at 38 U.S.C.A. § 5107(b)). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. B. Discussion Under 38 U.S.C.A. §§ 1110 and 1131, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by service. For the showing of 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2002). The Court of Appeals for Veterans Claims has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Court of Appeals for the Federal Circuit, which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). It is clear that "[t]he regulations regarding service connection do not require that a veteran must establish service connection through medical records alone." Triplette v. Principi, 4 Vet. App. 45, 49 (1993), citing Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). It is equally clear, however, that the resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, require professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). The veteran has contended that service connection should be granted for residuals of actinic keratosis of the left cheek. Service medical records document that in May 1991 a skin mole on his left cheek was excised and a biopsy showed actinic keratosis of the skin. In June 2003, a VA medical examiner reviewed the veteran's service and private medical records and examined him. The VA physician noted the May 1991 biopsy and that another biopsy was done by the veteran's private physician in December 2002 with results identifying actinic keratosis with adjacent solar lentigo. In the VA examiner's opinion, it was at least as likely as not that the veteran's actinic keratosis was the result of exposure to the sun while serving in the Persian Gulf. In light of the foregoing, the Board finds that the evidence of record is consistent with the veteran's contentions. Accordingly, in resolving doubt in the veteran's behalf, the Board concludes that service connection is warranted for actinic keratosis of the left cheek and residuals therefrom. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (old and new version); 38 C.F.R. § 3.303. ORDER Service connection for residuals of removal of actinic keratosis from the left cheek is granted. ____________________________________________ D. J. DRUCKER Acting Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.