Citation Nr: 0810429 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 00-22 091 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a skin disorder, claimed as actinic keratosis and skin cancer. 2. Entitlement to an evaluation in excess of 10 percent for service-connected right knee disability, to include traumatic geniculate neuroma from May 24, 1996 to September 27, 1999. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The veteran had active service from December 1952 to December 1954. By rating action in October 1996, the RO denied service connection for a right knee disability and a skin disorder, claimed as actinic keratosis and skin cancer. The veteran and his representative were notified of this decision and did not appeal. In October 2004, the Board of Veterans' Appeals (Board), in part, reopened the claim and granted service connection for a right knee disability, to include traumatic geniculate neuroma. By rating action in November 2004, the RO implemented the October 2004 Board decision and assigned a 40 percent evaluation for the right knee disability, effective from September 27, 1999, the date of receipt of the veteran's request to reopen his claim. The veteran perfected an appeal as to the effective date assigned for the grant of service connection. A videoconference hearing before the undersigned member of the Board was held in June 2005. In October 2005, the Board assigned an earlier effective date of May 24, 1996, for the grant of service connection for the right knee disability and reopened the claim of service connection for a skin disorder, and remanded the issue for additional development. By rating action in November 2005, the RO implemented the October 2005 Board decision and assigned a 10 percent evaluation for the right knee disability from May 24, 1996 to September 27, 1999, and continued the 40 percent evaluation thereafter. The veteran subsequently disagreed with the 10 percent evaluation assigned. The issue of an evaluation in excess of 10 percent for the right knee disability from May 24, 1996 to September 27, 1999 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All evidence necessary for adjudication of this claim have been obtained by VA. 2. The veteran's skin disorders, including recurrent actinic keratosis and squamous cell and basal cell carcinomas are at least as likely as not related to sun exposure in service. CONCLUSION OF LAW A skin disorder, including recurrent actinic keratosis and squamous cell and basal cell carcinomas was incurred in service. 38 U.S.C.A. §§ 1110, 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & Supp 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the claim of service connection for a skin disorder, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326. The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") held that upon receipt of an application for service connection VA is required by law 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id. VA law and regulations also indicate that part of notifying a claimant of what is needed to substantiate a claim includes notification as to what information and evidence VA will seek to provide and what evidence the claimant is expected to provide. Further, VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(a)-(c) (2007); Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In this case, a letter dated in April 2004, fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Although the letter was not sent prior to initial adjudication of the veteran's claim, this was not prejudicial to him, since he was subsequently provided adequate notice, and the claim was readjudicated and reopened by the Board in October 2005. As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Mayfield v. Nicholson, 444 F.3d at 1328, 1333- 34). Here, the veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was ultimately his responsibility to give VA any evidence pertaining to his claims, including any evidence in his possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The veteran was notified of his responsibility to submit evidence showing that he had a disability at present, which was related to service; of what evidence was necessary to establish service connection, and why the current evidence was insufficient to award the benefits sought. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. In light of the favorable decision with respect to the claim of service connection for a skin disorder, the Board finds that any VA deficiency in complying with VCAA is harmless error and that no useful purpose would be served by remanding the appeal to the RO. Cf. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed Cir. 2006); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Accordingly, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection: In General Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Id. 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Skin Disorder Initially, the Board notes that the National Personnel Records Center (NPRC) has verified that the veteran's service medical records were reportedly destroyed by fire at that facility and are unavailable for review. Where service medical records are absent or missing, there is a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. The case law does not, however, lower the legal standard for proving a claim for service connection. Russo v. Brown, 9 Vet. App. 46 (1996). The veteran contends that he was treated for several severe sunburns in service during basic training and believes that his current skin problems, including recurrent actinic keratosis and squamous cell carcinomas are the result of his repeated sunburns in service. He also asserted that he was treated for recurring skin problems by several private physicians since his discharge from service, although two of the doctors who treated him prior to the mid-1980's were now deceased and their records unavailable. The veteran also submitted a copy of a letter he apparently wrote to his parents while in basic training in March 1953, in which he mentioned that he was "getting pretty sun burn[ed]." The evidence of record includes numerous private medical reports showing treatment for chronic skin problems since at least 1990, and a copy of an envelope from a dermatology group, dated stamped in 1987. The evidence also includes a statement from a private physician (Dr. S. F.), received in September 2002, to the effect that the veteran had been treated at the dermatology clinic for recurrent skin problems associated with sun exposure since the 1980's. The physician indicated that the veteran reported a history of several severe sunburns during service and opined that his excessive sun exposure early in life contributed to the development of his current skin problems, including actinic keratosis and skin cancers. The veteran was also examined by VA on two occasions during the pendency of this appeal for the specific purpose of obtaining an opinion as to whether any identified skin problem was related to sun exposure during service. The VA physician in July 2003 indicated, in essence, that the veteran's skin problems were the result extensive sun exposure, more than 50 percent of which was probably incurred during civilian life as a child and during his mid years living in the central Midwest and Florida. The examiner opined, however, that some of his exposure during service contributed to his current skin problems. The VA examiner in November 2006 concurred with the earlier VA opinion that excessive sun exposure when young can lead to actinic keratosis and squamous cell cancer. He noted that the problem in this case was that there was no objective evidence that the veteran actually sustained the described severe sunburns in service. However, he opined that if the veteran had sustained the claimed sunburns in service, then his current skin problems would be at least as likely as not related, in part, to service. The examiner indicated that with the lack of objective evidence, a more precise opinion could not be offered. The evidence required to warrant a grant of disability benefits does not have to be conclusive. The question is whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In order to establish service connection the claimed disability, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Because of the apparent fire-related loss of the veteran's service medical records, VA is required to consider alternative sources to establish the element of in-service event or injury. In this case, the veteran's letter to his parents while he was in basic training would tend to support his assertions that he sustained at least some degree of sunburn during service. Under the circumstances, the Board finds that the letter confirms the veteran's assertions concerning an in- service incurrence or injury. Having accepted the letter as confirmation of an in-service injury, the Board finds that the remaining elements required to establish service connection have also been satisfied. That is, the veteran has a current diagnosis that includes chronic skin problems involving recurrent actinic keratosis and squamous cell and basal cell carcinomas, competent opinions to the effect that the skin disorders were at least as likely as not related to excessive sun exposure during service. In view of the nature of the veteran's chronic skin problems and the favorable medical opinions to the effect that they are at least as likely as not related to his history of chronic severe sunburns in service, the Board will resolve all reasonable doubt in favor of the veteran. Accordingly, service connection for a skin disorder, including recurrent actinic keratosis and squamous and basal cell carcinoma is granted. ORDER Service connection for a skin disorder, including recurrent actinic keratosis and squamous cell and basal cell carcinomas is granted. REMAND Concerning the claim for an initial evaluation in excess of 10 percent for the service-connected right knee disability from May 24, 1996 to September 27, 1999, the Board notes that the veteran expressed dissatisfaction with the 10 percent evaluation assigned by the RO in November 2005, by letter received in February 2006, approximately three weeks after the date of the letter notifying him of the AMC action. In May 2007, the AMC notified the veteran, in essence, that his notice of disagreement (NOD) was not timely received and that his letter would be treated as a "new claim." The Board finds, however, that a timely NOD was received to the November 2005 rating action. However, a statement of the case (SOC) has not been promulgated for this issue. The Court has held that when there has been an initial RO adjudication of a claim and a notice of disagreement has been filed as to its denial, thereby initiating the appellate process, the claimant is entitled to an SOC regarding the denied issue. The RO's failure to issue an SOC for the veteran's claim is a procedural defect requiring remand. Godfrey v Brown, 7 Vet. App. 398, 408 (1995). In light of the discussion above, and to ensure full compliance with due process requirements, it is the decision of the Board that further development is necessary prior to appellate review. Accordingly, the claim is REMANDED to the RO for the following action: The veteran and his representative should be furnished a SOC for the issue of an evaluation in excess of 10 percent for the service-connected right knee disability from May 24, 1996 to September 27, 1999, and should be notified of the need to file a timely substantive appeal should he wish the Board to address this matter. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs