Citation Nr: 0614290 Decision Date: 05/16/06 Archive Date: 05/25/06 DOCKET NO. 00-25 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a dental disability for compensation purposes. 2. Entitlement to service connection for skin cancer, claimed as due to sun exposure. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The veteran served on active duty from May 1975 to February 1982, February 1983 to December 1984 and November 2001 to February 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in April 2000, September 2000, and September 2004 of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In October 2002, the veteran testified at a Board hearing in Washington, D.C. before the undersigned Acting Veterans Law Judge. In June 2003, the Board remanded the issue of entitlement to service connection for skin cancer, claimed as secondary to sun exposure, to the RO for additional development. The veteran testified at a second Board hearing in Washington, D.C. in January 2006 before the undersigned Acting Veterans Law Judge. It is evident based on a review of the arguments and testimony, including the veteran's February 2004 statement, that he is also seeking entitlement to VA outpatient dental treatment. A claim for service connection for a dental disorder also raises a claim for outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302 (1993). However, the veteran's present claim has been treated as a straightforward claim for service connection and compensation, so the issue of entitlement to outpatient dental treatment will not be adjudicated. If the veteran indeed intends to pursue a claim for outpatient dental treatment, he should contact and inform the Medical Administrative Service (MAS) of his nearest VA Medical Center, in order for the MAS to take appropriate action regarding that issue, since the MAS, not the RO, processes claims for eligibility for VA outpatient dental treatment. Kellar v. Brown, 6 Vet. App. 157 (1994). Also, it appears from an April 2005 letter from the RO to the veteran that the RO is separately developing a claim for service connection for a skin disability other than skin cancer. This matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. In a December 2001 rating decision, the RO denied the veteran's claim for service connection for a dental disability. Although notified of that denial in December 2001, the veteran did not appeal that decision. 2. The additional evidence associated with the claims file since the December 2001 denial does, by itself or considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim for service connection for a dental disability. 3. There is no probative evidence that the veteran has a dental disability due to dental trauma in service. 4. Skin cancer was not manifested during the veteran's active duty service or for many years thereafter, nor has skin cancer been shown to otherwise relate to such service. CONCLUSIONS OF LAW 1. The December 2001 rating decision that denied the veteran's claim for service connection for a dental disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.1103 (2005). 2. Since the December 2001 denial, new and material evidence has been received to warrant reopening the appellant's claim for service connection for a dental disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2005). 3. The criteria for service connection for a dental disability for the purpose of compensation are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.381 (2005). 4. Service connection for a skin disability, claimed as due to sun exposure, is not warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005)). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board need not consider the question of VCAA compliance in this case as to whether new and material evidence has been received to reopen a claim for a dental disability, as there is obviously no detriment to the veteran as a result of any VCAA deficiency in view of the favorable decision below with respect to reopening the claim. See Kent v. Nicholson, No. 04-181 (U.S. Vet. App. March 31, 2006). As to the underlying claim of entitlement to service connection for a dental disability, as well as for skin cancer, the Board finds that the passage of the VCAA and its implementing regulations does not prevent the Board from rendering a decision on these claims at this time, as all notification and development action needed to render a fair decision on this claim have been accomplished. The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Because the March 2004 VCAA notice letter in this case was not provided to the appellant prior to the 2000 RO decision from which he appeals, it can be argued that the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. While the Court did not address whether, and, if so, how, the Secretary can properly cure a defect in the timing of the notice, it did leave open the possibility that notice error of this kind may be non-prejudicial to a claimant. In this respect, all the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). VA has fulfilled its duty to notify the claimant in this case. In the March 2004 letter, as well as the September 2000 and June 2005 statements of the case, and the December 2001, May 2002, and June 2004 supplemental statements of the case, the RO informed the claimant of the applicable laws and regulations, the evidence needed to substantiate the claims, and which party was responsible for obtaining the evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997). The Board also notes that the March 2004 letter implicitly notified the claimant of the need to submit any pertinent evidence in his possession. In this regard, the claimant was repeatedly advised to identify any source of evidence and that VA would assist in requesting such evidence. The Board believes that a reasonable inference from such communication was that the claimant must also furnish any pertinent evidence that he may have and that the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the claimant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, supra. In the instant appeal, the Board finds that the veteran is not prejudiced by a decision at this time in view of the Board's decision to deny the claims. Thus, there is no disability rating or effective date that will be assigned for the claimed disabilities. The Board also finds that all necessary development has been accomplished. The RO has made reasonable and appropriate efforts to assist the claimant in obtaining the evidence necessary to substantiate these claims, including requesting identified medical records and affording the veteran VA medical and dental examinations. The claimant was also provided with the opportunity to attend a Board hearing, which he attended in October 2002 and January 2006. The claimant has not indicated, and there is otherwise no indication that there exists, any pertinent outstanding evidence that is necessary for a fair adjudication of the claim that has not been obtained. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the claimant in his claims for service connection for a dental disability and for compensation purposes and skin cancer, and that adjudication of these claims at this juncture, without directing or accomplishing any additional notification and or development action, poses no risk of prejudice to the claimant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Dental A. New and Material Evidence Background The veteran underwent an initial dental exam, Type 2, in June 1975 at which time teeth #s 1, 16, 17 and 32 were circled on the dental chart. Service dental entries from June 1975 to November 1981 do not reflect trauma to the teeth. The veteran's service medical records show that he sustained a knife injury to the left side of his face in October 1977. There was a 4 millimeter laceration behind the left ear and a laceration on the face from the left ear over the left maxillary area. The dental entry closest in time to the 1977 incident is an entry dated in February 1979. According to this entry, the veteran reported for a T-2 exam, pre- enlistment. A September 1979 record shows that the facial scar had been hypertrophic for two and a half years, with no response to steroid injections. The veteran was considered for surgery. In June 1990, the veteran underwent a VA examination and reported a facial scar on the left side, problems shaving, and slurred speech. He was assessed as having a facial scar. On file is an October 1996 letter from John Edward Kelly, M.D., stating that the veteran sustained a significant laceration of his left facial area in 1977 and that as a consequence, he experienced frequent bouts of painful nerve sensatory discharge. He said that the episodes were caused by pressure or touching the scar site and were experienced as electrical shock phenomena throughout the distribution of the affected nerves. In an October 1996 statement, the veteran said that while he was receiving compensation for his facial scar, he was not receiving any compensation for nerve damage. He said he experienced constant pain as well as sharp, electrical pain on pressure or rubbing to the area. During a March 1997 VA general examination, the veteran reported a laceration to the left side of his face in 1977 with a resultant scar and facial pain. He did not report any problems with his teeth. He was assessed as having a facial scar. In April 1997, the veteran underwent a VA peripheral nerve examination where he reported being assaulted in service with a machete. He said this resulted in a laceration to his left cheek and left ear. He reported residual neurological problems and pain, but did not note any dental/teeth problems. In an April 1997 rating decision, the RO continued a 10 percent rating for facial scarring. In December 2000, the veteran underwent a VA dental consult due to complaints of a "toothache." Findings revealed a distal fracture and caries to tooth #31. Radiographic examination revealed "PARL" to teeth #s 30 and 31. These teeth were surgically extracted. The veteran again reported for a VA dental consult in January 2001 due to pain radiating from the lower left side of his mouth. X-rays revealed a periapical abscess affecting tooth #18 and non-restorable crown. The veteran was assessed as having a non restorable tooth #18 and restorable tooth #13. Tooth #18 was surgically extracted and tooth #13 was treated with "MOD" alloy with "GI" base. In a letter dated in January 2001, the veteran said that he sustained severe injuries to the left side of his face that were associated with some of his dental problems. He went on to state that he had nerve damage on the left side of his face from his wounds and a loss of feeling and numbness on the left side at the jaw and gum line. He further reported a continuous tingling and throbbing sensation and muscle/nerve contractions. During a VA dental examination in February 2001, the veteran reported having nerve damage due to being cut by a machete across the left side of his face in service. Findings revealed no functional impairment due to loss of motion and masticatory function loss. There was also no bone loss of the mandible, maxilla or hard palate. Teeth numbers 1, 14, 16, 18, 30 and 31 were currently missing and teeth numbers 14, 18, 30, and 31 were determined to be replaceable by prosthesis. The examiner noted that all of these teeth were removed after service. He added that teeth numbers 1 and 16 were wisdom teeth and could not be replaced by prostheses. The veteran reported that teeth numbers 1, 14 and 16 had been extracted in service, but not at the time of the machete incident in 1977. The examiner stated that there was no loss of teeth due to loss of substance of body or mandible. In a December 2001 rating decision, the RO denied the veteran's claim for service connection for a dental disability, claimed as secondary to his service-connected left facial scar. In March 2002, the RO received VA outpatient records from the Martinsburg VA medical center (VAMC) showing treatment from 1999 to 2001. These records include a December 2000 record showing that the veteran reported to triage complaining of a toothache. He said that the tooth was in the right lower jaw area and he thought the root was exposed. A January 2001 addendum dental record shows that the veteran was seen for continuing post tooth extraction and that the need for dental eligibility vs. emergency care was explained to him. He was assessed as having odontogenic infections on the left side. A July 2001 dental summary shows that the veteran reported for an unscheduled visit complaining that his "tooth broke off." Tooth #13 was prepped for a crown. The record shows that the veteran understood that it was a temporary crown and that a definitive crown needed to be fabricated. Later in July 2001, the veteran presented on an emergency basis complaining of the loss of his temporary crown to tooth #13. He was assessed as having restorable tooth #13 and the temporary crown was recemented. VA outpatient records also include an undated record from the radiology service reflecting an assessment of dental caries. In a June 2003 statement (VA Form 21-4138), the veteran requested that he be compensated for his dental injuries and he also requested dental care. He said he broke several teeth in service. He enclosed dental records from the National Naval Dental Center dated in December 2001 and February 2002. These records show that the veteran had urgent dental needs with possible abscess/emergency hospital sequela. The February 2002 record shows that the veteran presented for surgical endo therapy to tooth #11. His post- op diagnosis was periradicular granuloma and the microscopic diagnosis was Apex, tooth #11, apical periodontal cyst. In a February 2004 statement, the veteran said that he broke several teeth while on active duty in December 2001 and has had continuous pain and an inability to chew his food. He said his doctors told him he needed additional dental work to repair his teeth and requested that his teeth be fixed and that he be compensated for his dental injuries. He added that this has been getting worse since 2001. During a VA dental examination in August 2004, the veteran reported that he broke two teeth while eating on active duty on December 2001. Oral examination revealed no functional impairment, no loss of jaw motion, and a somewhat diminished masticatory loss due to loss of teeth. The missing teeth were #s5, 14, 18, 30 and 31 and were noted to be replaceable by dental prosthetics. However, the examiner said that the extent could not be determined until further restorative care was accomplished. There was no limitation of range of jaw motion. There was no loss of bone in the maxillary or mandible other than the alveolar bone loss associated with the described missing teeth. A panoramic digital radiograph was made revealing dental caries and missing teeth. The remaining oral structures appeared normal. The examiner said that the etiology of the veteran's missing teeth was most likely resultant from dental caries and that the veteran could not provide a detailed history of his missing teeth. In March 2005, the RO received records showing that the veteran had been seen in the emergency room of a medical facility in December 2001 with various complaints that included his teeth. Specifically, the veteran was noted to have several carious and broken teeth in the left upper molar area. He was assessed as having carious teeth. He was placed in a no duty/limited status for 24 hours and given a diagnosis of apical abscess #11/I&D. During a January 2006 hearing, the veteran testified that he broke several teeth while on active duty and was told by a Navy dentist that they could only do so much and that VA would do the rest. He said he had been seen several times at the VA medical center for various tooth extractions, surgery and repair of damaged teeth. He said his dental problems began in service after sustaining a face wound in 1977. He also said that he fell in service "the second time" and broke a couple of teeth, but that they "fixed pretty much all of that." He said all of the "nerve damage and everything" seemed like it was on the left side of his face where he was injured and he thought that the VA doctor knew it was due to the injury, although he never said that directly or put it on paper. Analysis In December 2001, the RO denied the veteran's claim for service connection for a dental disability. The veteran did not timely appeal this decision, and it is final as to the evidence then of record. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2005). The current claim culminates from the appellant's attempt, in June 2003, to reopen the previously disallowed claim. It appears that in the September 2004 rating decision the RO effectively determined that new and material evidence had been received to reopen the veteran's claims for a dental disability. The RO then proceeded to deny the claim on the merits. However, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The definition of "new and material evidence" as set forth in 38 C.F.R. § 3.156(a) was revised, effective August 29, 2001. This new regulation provides: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 66 Fed. Reg. 45630 (2001) (codified as amended at 38 C.F.R. § 3.156(a)). This latest definition of new and material evidence only applies to a claim to reopen a finally decided claim received by the VA on or after August 29, 2001. Id. As the veteran in this case filed an application to reopen a claim for service connection for a dental disability in June 2003, the revised version of 3.156 is applicable in this appeal. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Board notes that VA regulations regarding dental disorders were revised, effective June 8, 1999. See 64 Fed. Reg. 30,392 (June 8, 1999). Dental disabilities which may be awarded compensable disability ratings are now set forth under 38 C.F.R. 4.150 (2005). These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. 4.150, Diagnostic Codes 9900-9916 (2005). Treatable carious teeth, replacement missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 C.F.R. § 3.381(a) (2005). The evidence submitted prior to December 2001 includes the veteran's service medical records from his first two periods of active duty; from May 1975 to February 1982 and from February 1983 to December 1984. These records show that he sustained a facial wound from a knife and was diagnosed as having a facial scar, left maxillary area. His dental records from these periods of service do not show any other trauma to his mouth or teeth. The evidence prior to December 2001 also included VA outpatient dental treatment in December 2000 and January 2001. In December 2000, the veteran complained of a toothache and was found to have a large distal fracture of tooth #31 and caries. He underwent extraction of teeth #s 30 and 31. In January 2001, the veteran was seen for pain radiating from the left lower side of his mouth and was found to have a nonstorable tooth #18 and restorable tooth #13. Tooth #18 was surgically extracted and #13 was treated with "MOD" alloy with "GI base". In addition, the veteran underwent a VA dental examination in February 2001 at which time the examiner noted that all of the veteran's missing teeth were removed after service and that four of his six missing teeth (#s 14, 18, 30 and 31) could be replaced with prosthesis. He said the remaining two teeth could not be replaced by prosthesis because they were wisdom teeth (#s 1 and 16). The examiner also stated that the veteran had no bone loss of mandible, maxilla or hard palate and no missing teeth due to loss of substance of body or mandible. The evidence submitted after the December 2001 adverse decision includes the veteran's assertions of a dental injury during a subsequent period of active duty service, from November 2001 to February 2002. In this regard, the veteran said that he broke several teeth in December 2001 and was seen in the emergency room for urgent medical care. The evidence also includes service dental records from this period of service not previously on file showing that the veteran was seen for urgent dental needs in December 2001 for carious and broken teeth. In addition, he received dental treatment for teeth #s 11 and 32 while in service in February 2002. The Board finds that the evidence submitted after the December 2001 final adverse decision as outlined above is new, in that it has not been previously considered by agency decision makers, and is not cumulative or duplicative of evidence previously considered. The Board further finds that the new evidence must be considered material in that it relates to the essential elements for service connection for a dental disability that was not previously considered. That is, it pertains to a new alleged dental injury and shows dental treatment for a period of active duty not previously considered. This evidence, when considered with evidence previously of record, bears substantially upon the specific matters under consideration. In short, the record contains new and material evidence to reopen the claim for service connection for a dental disability. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). B. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection for treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and for periodontal disease will be considered solely for the purpose of establishing eligibility for outpatient dental treatment. See 38 C.F.R. § 3.381(a) (2005). Turning to the merits of the veteran's underlying claim for service connection for a dental disability, it appears that the veteran is attributing his present dental problems to two incidents while on active duty. The first incident occurred in 1977 when the veteran was hit on the left side of his face with a machete and sustained a facial laceration and nerve damage. The second incident reportedly occurred while on active duty in December 2001. The veteran asserts that he fell in December 2001 and broke several teeth. He also alternatively asserted that he broke his teeth in December 2001 while eating something. With respect to the first claimed dental injury in October 1977, while the records establish a left face laceration, they do not show any dental problems related to the incident. In fact, the earliest evidence of dental treatment following the October 1977 incident is not until a February 1979 T-2, pre-enlistment examination. Not only was this examination performed over one year after the October 1977 facial injury, it makes no mention of any dental problems arising from the 1977 injury. In short, the only evidence relating the veteran's present dental problems to the 1977 inservice facial trauma is the veteran's opinion that such a relationship exists. The Board does not doubt the sincerity of the veteran's belief that he has present dental disabilities due to service; however, his belief does not constitute probative evidence of such a fact since the resolution of issues which involve medical knowledge, such as the diagnosis of disability and determination of medical etiology, must be addressed by medically trained individuals. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The second claimed inservice dental trauma pertains to dental treatment that the veteran received on active duty in December 2001. In this regard, dental records from the National Naval Dental Center show that the veteran was seen in December 2001 for urgent dental needs with possible abscess/emergency hospital sequela. There is no indication that the treatment was due to inservice dental trauma such as a fall. The veteran's 2006 hearing testimony of breaking his teeth in service in December 2001 in a fall conflicts with the statement he made during an August 2004 VA examination that he broke teeth in December 2001 while eating. Furthermore, the August 2004 VA examiner noted that that the veteran could not provide a detailed history of his missing teeth and opined that the veteran's missing teeth were most likely resultant from dental caries. Thus, to the extent that the dental treatment being claimed is shown to involve abscesses, carious teeth, and replaceable missing teeth, these conditions are considered solely for the purpose of establishing eligibility for treatment purposes, and not compensation purposes. See 38 C.F.R. § 4.150. In sum, because there is no probative evidence of dental trauma in service, the Board is without legal authority under governing regulations to grant service connection for a dental condition for purposes of an award of disability compensation benefits. In addition, the regulations listed above clearly prohibit service connection for purposes of compensation where the disability involves replaceable missing teeth, abscesses and carious teeth. Where, as here, the law is dispositive of the claim, it should be denied because of lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). III. Skin Cancer Background The veteran's service medical records show that he sustained a knife injury to the left side his face in October 1977 with lacerations, including a 4 mm laceration behind his left ear. He also sustained a laceration on his right hand in March 1980 from a piece of glass. In August 1980, the veteran was referred to plastic surgery for scar formation on his face and hand. His service medical records are devoid of findings or treatment for sunburns or skin cancer. A December 1996 private medical record shows that the veteran was treated for an actinic keratosis on his face below his left eye and was prescribed "LN2." In February 2000, the veteran filed a claim for service connection for skin cancer which he claimed was secondary to sun exposure in service. In May 2000, the veteran was seen at a VA outpatient clinic for a follow-up visit with a noted history of skin cancer. He reported that he felt fine without any problems. He was diagnosed as having skin cancer. On file is a June 2000 dermatology record from Stephen W. White, M.D., regarding a dermatology consultation he had with the veteran in September 1997. Dr. White stated that the veteran had had several precancerous sun spots which take 20 to 40 years to develop. He prescribed Efudex (5%) cream for the veteran. In the substantive appeal dated in October 2000, the veteran said that he sustained several burns to his skin in the military from direct sun light for numerous hours a day and acquired skin cancer during service. An August 2001 VA outpatient record shows that the veteran was evaluated for a lesion on his left forehead. He was given an impression of lentigo vs lentigo maligna; nevus vs melanoma; and wart. In December 2001, the veteran was seen at a VA outpatient clinic complaining of a constant painful lesion on the bottom of his left foot which he had had for 16+ years. His diagnoses included pronation syndrome, verruca plantaris, left foot, and metatarsalgia, left foot. During an October 2002 Board hearing, the veteran testified that the only time he had severe sunburns was in service and he denied any problems with his skin prior to service. He said that doctors told him it took 20 to 40 years for the skin cancer to develop and this was the time frame he was on active duty. He said he was getting scars on his arms and face and also had skin cancer removed from his stomach. The veteran was evaluated by VA in April 2003 at which time he said he first consulted a dermatologist for scaly skin lesions in September 1997. He said he was treated by Dr. Stephen White at that time. He added that since 1999 he had been coming to the Martinsburg VA dermatology clinic and had been followed for several actinic keratosis lesions on his arms and face, most of which have been frozen. He also had two lesions excised, one on his forehead and one of his left abdomen. The examiner noted that the lesion on the veteran's forehead was a senile lentigo and the one on his abdomen was a compound nevus. He relayed the veteran's report that his multiple skin lesions were due to exposure in service, particularly when he was stationed in N. Africa, Okinawa, and California. Examination of the veteran's face and arms revealed faint, residual scars following cryotherapy for multiple actinic keratoses. The examiner also noted that there was a residual scar, status post excision of a senile lentigo on the veteran's forehead, and a compound nevus on his left abdomen. He explained that the compound nevus was not related to sun damage, but the lentigo was a hyperpigmented skin disorder that tended to appear in sun exposed areas. He went on to explain that actinic keratosis were precancerous skin lesions which were often due to many years of overexposure to sunlight, particularly in fair- skinned people like the veteran. He opined that the many years of sun exposure "as likely as not" contributed to the formation of actinic keratosis. In an addendum opinion in January 2004, the April 2003 VA dermatology examiner said that "it is impossible to state, with any degree of certainty, the amount of exposure that one suffers from military exposure as opposed to the amount of sun exposure that is related to everyday living." Color photographs were taken of the veteran's skin problems by VA in February 2004 and these photographs have been associated with the claims file. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For certain chronic disorders, to include malignant tumors, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2005). The law further provides that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability proximately due to or the result of a service-connected disorder and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The basis of the RO's denial of the veteran's claim for service connection for skin cancer is that the veteran does not have the disability being claimed. That is, that he was only found to have pre-malignant lesions diagnosed as actinic keratosis, and not skin cancer. Despite this finding, there is a May 2000 VA outpatient record that reflects a diagnosis of skin cancer. Thus, even assuming that the veteran had skin cancer, his claim still cannot prevail in view of the fact that the weight of medical evidence does not establish a nexus to service. As stated in the facts above, the veteran's service medical records are devoid of any complaints or treatment for severe sunburns or skin cancer. The first pertinent postservice evidence is many years after service, in 1996. Specifically, there is a December 1996 private medical record showing actinic keratosis on the veteran's face. There is also an April 2003 VA dermatology report which shows that the veteran had been coming to the dermatology clinic since 1999 for several actinic keratosis lesions on his arms and face, most of which had been frozen. The above-noted findings are not inconsistent with the veteran's claim. That is, the veteran is not claiming that he developed cancerous lesions in service. Rather, he asserts that the sun exposure he had during service caused his cancerous lesions years after service. The veteran makes reference to a dermatology statement from Dr. White who treated the veteran for precancerous sun spots in September 1997 and who estimated that it takes 20 to 40 years for such spots to develop. In view of this statement, the veteran asserts that his sun exposure during service is the cause of his post service sun spots/precancerous lesions. However, Dr. White's statement does not constitute probative evidence linking the veteran's claimed skin cancer to service simply because Dr. White does not link the veteran's sun spots to service. His statement is simply too vague to establish the requisite nexus to service. While going back 20 years from the date the veteran was found to have actinic keratosis, in 1996, would place the onset of sun exposure to around the time the veteran first entered active duty service, going back 40 years would place the date of onset well before the veteran's active duty service. The only medical opinion on file that directly addresses the question of a nexus between the veteran's actinic keratosis and service is the April 2003 VA examiner's addendum opinion. However, this examiner replied that he was unable to address this question without resorting to speculation. Specifically, he said that "it is impossible to state, with any degree of certainty, the amount of exposure that one suffers from military exposure as opposed to the amount of sun exposure that is related to everyday living." In short, the medical evidence of record does not medically link the veteran's actinic keratosis/skin cancer to his period of service, to include sun exposure during service. The Board in no way disputes the veteran's belief that he developed skin cancer due to sun exposure in service and appreciated his testimony in January 2006 before the undersigned. However, his opinion in this regard, without a supportive opinion from a physician, does not constitute the requisite medical evidence necessary to establish service connection. This is because the veteran is a layman and without medical training or expertise, he is not competent to render an opinion on a medical matter. See Bostain v. West , 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Inasmuch as the veteran was not shown to have skin cancer during his period of recognized service or for many years thereafter, and because there is no competent medical evidence that supports his assertions of a nexus between his recognized period of service and skin cancer, his claim must be denied. 38 C.F.R. §§ 3.303. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision as to this service connection issue. ORDER New and material evidence has been submitted to reopen the claim for service connection for a dental disability. To this extent, the appeal is allowed. Service connection for a dental disability for compensation purposes is denied. Service connection for skin cancer, claimed as secondary to sun exposure, is denied. _____________________________________________ A. P. SIMPSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs