Citation Nr: 1236203 Decision Date: 10/18/12 Archive Date: 11/05/12 DOCKET NO. 06-35 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for basal cell carcinoma to the face, back, and neck. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied service connection for skin cancer of the face, back, and neck. In June 2010, the Board denied the instant claim, as well as a claim for entitlement to service connection for dental trauma and a petition to reopen a claim of entitlement to service connection for a back disability. The Veteran appealed the Board's denial of service connection for basal cell cancer to the United States Court of Appeals for Veterans Claims (Court). In February 2011, the Court granted the parties joint motion for partial remand, vacating the Board's decision which denied service connection for basal cell cancer. In the joint motion, the parties agreed that the issue of entitlement to service connection for dental trauma and the petition to reopen the claim of entitlement to service connection for a back disability were to be deemed abandoned, as the Veteran did not dispute the Board's denial of those claims. In August 2011, the Board remanded the issue of service connection for basal cell cancer to the face, back, and neck to the Appeals Management Center (AMC) so that the Veteran could be afforded a new VA dermatology examination. The requested development having been completed, the case again is before the Board. Following the last RO adjudication in a June 2012 Supplemental Statement of the Case (SSOC), the Veteran submitted additional evidence directly to the Board. Although the Veteran did not submit a waiver, the Board is granting the Veteran's claim and will accept this additional evidence for inclusion into the record on appeal. FINDINGS OF FACT There is an approximate balance of positive and negative evidence as to whether the Veteran's current basal cell carcinoma to the face, back, and neck is due to in-service sun exposure. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, his basal cell carcinoma to the face, back, and neck was caused by in-service sun exposure. 38 U.S.C.A. § 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2011). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) . In order to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran claims that his diagnosed basal cell carcinoma, diagnosed and treated in 2001, was caused or aggravated by in-service sun exposure. The Veteran has been diagnosed with a history of basal cell carcinoma in the most recent September 2011 VA examination. The examiner noted that there were well healed scars on previous surgery sites on right cheek, upper medial back due to skin cancer treatment in 2001. Therefore, the first element of the existence of a present disability has been met. Second, the Veteran must show in-service incurrence or aggravation of a disease or injury. Service treatment records indicate that the Veteran was treated for seborrheic dermatitis in December 1966. Psoriasis of the scalp is noted in an April 1969 entry. The Veteran denied skin disease in the March 1969 separation examination. Clinical examination revealed normal skin, and he was deemed qualified for discharge. The Veteran claims that in Vietnam he worked in the sun and received severe sunburns on his face and neck. See Veteran's statement received in October 2005. He had painful blisters on the sunburns. The Veteran's fellow soldier attested that the Veteran was a heavy equipment operator and had gotten severe sunburns on his face, neck and shoulders during his months in Vietnam. See W.W. statement received in September 2005. The Board finds the Veteran and his friend's statements credible. The Veteran and his friend are competent to establish the presence of observable symptomatology such as a sunburn and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The Board concedes that the Veteran had excessive sun exposure in Vietnam. The question then becomes whether there is a causal relationship between the Veteran's current skin cancer and his excessive sun exposure during Vietnam. In March 2006, the Veteran was afforded a VA examination to determine the etiology of his skin cancer. The examiner explained that it is well established that sun exposure particularly intense periods of sun exposure and sunburns, particularly during childhood and adolescence, predisposes people to the development of basal cell cancer later in life. With this information, it could be asserted that the extensive sun exposure that the Veteran received while in Vietnam contributed to or caused the basal cell carcinomas he developed on his face and neck. She also noted that basal cell carcinoma is an extremely common cancer and the examiner could not clearly assert that she would not have developed this cancer had the Veteran not been in service or had not acquired these sunburns. Relying on this decision, the Board denied the Veteran's claim in June 2010. The Veteran appealed his case to the Court. In a joint motion, the parties agreed that the March 2006 examination was not adequate for rating purposes as a relationship between a current disability and service need not be establish to a degree of medical certainty, as the examiner expressed, but instead the evidence must establish that there is "at least as likely as not" a relationship. For these reasons, the Board will now turn to the other opinions included in the file. Evidence against the Veteran's claim includes an opinion by a VA examiner in a September 2011 VA examination report. After examining the Veteran, the examiner diagnosed the Veteran with a history of basal cell carcinoma. The examiner stated that although the Veteran claims that his BCC was caused by severe sunburns during his deployment in Vietnam, there was no direct evidence that the Veteran's alleged sunburns during service have a connection with basal cell carcinoma diagnosed after service. Evidence in favor of the Veteran's claim includes three private opinions. In December 2006, the Veteran's private physician, Dr. E., advised the Veteran that the sunburns he received in service could be an aggravating factor; however, the examiner stated that he did not know how relevant his service was to the Veteran's history. He also noted that exposure to ultraviolet light does contribute to skin cancer. The private dermatologist suggested that extensive sun exposure in Vietnam "could" have contributed to the Veteran's eventual skin cancer. However, the Court has held that medical opinions which are speculative, general or inconclusive in nature cannot support a claim. See Bostain, v. West, 11 Vet. App. 124, 127-28 (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of 'may' also implies 'may or may not' and is too speculative to establish medical nexus). Therefore, the Board will afford this opinion little probative weight. Despite this, the Veteran also submitted two more recent medical opinions linking his exposure to sun in Vietnam to his skin cancer. An October 2011 opinion by Dr. C. notes that the Veteran served for one year in Vietnam from 1967 to 1968. During his time in Vietnam, he worked outdoors continuously and had excessive sun exposure and sunburns. The Veteran believes that three-quarters of his total sun exposure occurred during this time spent in Vietnam. The dermatologist opined that it is likely that the cause for his skin cancers related to his history of service in Vietnam. It is well documented that extensive ultraviolet exposure can contribute to skin cancer much later in the patient's life. A September 2012 opinion by Dr. G. notes that the Veteran served for one year in Vietnam from 1967 to 1968. During his time in Vietnam, he worked outdoors for a significant amount of time resulting in excessive sun exposure and sunburns. The Veteran believes that three-quarters of his lifetime sun exposure occurred during this time spent in Vietnam. The physician opined that the significant sun exposure in Vietnam likely contributed to his development of skin cancer. The dermatologist explained that multiple research publications have shown that significant sun exposure can lead to skin cancer development later in life. The Board acknowledges that both positive opinions are very similar and almost identical. Despite this, the Board finds that both opinions are credible and the dermatologist are competent to provide the opinions as they both had been treating the Veteran in the dermatology clinic for history of skin cancer. In this case, the competent and probative medical opinions of record attribute the Veteran's current basal cell carcinoma to the face, back, and neck to his in-service sun exposure in Vietnam. Although there is a competent medical opinion to the contrary, the Board concludes that the evidence is at the very least in relative equipoise as to whether the Veteran's current basal cell carcinoma to the face, back, and neck was caused by his in-service sun exposure. When the totality of the evidence supports the Veteran's claims or is in relative equipoise, the Veteran prevails on his claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, having resolved reasonable doubt in favor of the Veteran, the Board concludes service connection for basal cell carcinoma to the face, back, and neck is warranted. ORDER Entitlement to service connection for basal cell carcinoma to the face, back, and neck is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs