Citation Nr: 0811242 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-03 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for malignant melanoma. 2. Entitlement to service connection for an enlarged prostate. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Muhlfeld, Associate Counsel INTRODUCTION The veteran had active military service from October 1958 through January 1964 and from April 1964 through April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of March 2005 and August 2005 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the veteran originally requested a hearing at a local VA office, but later withdrew his request. FINDINGS OF FACT 1. The veteran does not have malignant melanoma that is related to his military service. 2. The veteran does not have an enlarged prostate that is related to his military service. CONCLUSIONS OF LAW 1. The veteran does not have malignant melanoma that is the result of disease or injury incurred in or aggravated during active military service; nor may malignant melanoma be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 1116, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2007). 2. The veteran does not have an enlarged prostate that is the result of disease or injury incurred in or aggravated during active military service; nor may an enlarged prostate be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 1116, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the veteran was apprised of VA's duties to both notify and assist in correspondence dated in January, March, April, and May of 2005, and March 2006. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claim, "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Consequently, the Board does not find that the late notice under the VCAA requires remand to the RO. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA.) Specifically regarding VA's duty to notify, the notifications to the veteran apprised him of what the evidence must show to establish entitlement to the benefits sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the veteran's behalf. The RO specifically requested that the veteran either identify or submit any evidence or information he had pertaining to his claim. The RO also provided a statement of the case (SOC) and a supplemental statement of the case (SSOC) reporting the results of its reviews of each issue and the text of the relevant portions of the VA regulations. The veteran was apprised of the criteria for assigning disability ratings and for award of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the veteran's service medical records (SMRs), VA and private medical records, and secured a genitourinary examination in furtherance of his claim. The Board notes that VA is not required to provide a medical examination to a claimant as part of the duty to assist if the record does not already contain evidence of an in-service event, injury, or disease. See Duenas v. Principi, 18 Vet. App. 512, 517 (2004); see also Wells v. Principi, 326 F.3d 1381 (2003), (Board under no obligation to obtain a medical opinion when there is no competent evidence that the veteran's disability or symptoms were service related). In this case, as discussed below, there is no evidence that the veteran's skin cancer or enlarged prostate are service related. As such, VA is not required to afford the veteran a nexus examination for either disability, and therefore, VA has no duty to inform or assist that was unmet. The Board has considered the case of Charles v. Principi, 16 Vet. App. 370 (2002) wherein the Court held that, under 38 U.S.C.A § 5103A(d)(2), VA was to provide a medical examination as "necessary to make a decision on a claim, where the evidence of record, taking into consideration all information and lay or medical evidence, [including statements of the claimant]," and where, the claimant had been diagnosed to have tinnitus, and had proffered competent lay evidence that he had had continuous symptoms of the disorder [i.e., ringing in the ears] since his discharge. Because there was evidence of record satisfying two of the requirements of the statute, i.e., competent evidence of a current disability and evidence indicating an association between the appellant's disability and his active service, but there was not of record, as relied upon in part by the Board in denying his claim, competent medical evidence addressing whether there is a nexus between his tinnitus and his active service, VA was to provide the claimant with a medical "nexus" examination. However, unlike Charles, the veteran has not reported symptoms in service, or a continuity of symptoms since separation. Instead, he has asserted a relationship between his current disabilities and exposure to herbicides, which, as noted below, is outside the competence of the veteran as a layperson. See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, 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). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Caluza v. Brown, 7 Vet. App. 498 (1995). Further, it is not enough that an injury or disease occurred in service; 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). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2007). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases for which service connection may be presumed to be due to an association with herbicide agents include chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). In general, for service connection to be granted for one of these diseases, it must be manifested to a degree of 10 percent or more at any time after service. Chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy must be manifest to a degree of 10 percent within one year after the last date on which the veteran performed active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See 38 U.S.C.A. § 1116 (West 2002 & Supp. 2007); 38 C.F.R. § 3.307(a)(6)(ii); Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In this case, the veteran contends that his malignant melanoma/skin cancer and enlarged prostate are due to his military service, and in particular, to his exposure to Agent Orange while serving in Vietnam. Malignant Melanoma Here, the service medical records (SMRs) are devoid of any reference to treatment or complaints related to the veteran's skin, and the entrance and separation examinations reveal a normal clinical evaluation of the skin. However, treatment records from the Dallas VAMC contain references to treatment and diagnosis for skin cancer, including malignant melanoma. Specifically, a January 2005 biopsy revealed that the veteran had skin cancer on his left shoulder, and a February 2005 entry noted a past medical history of basal/squamous cell carcinoma on the veteran's truck. In addition, dermatology notes dated in March and April 2005 diagnosed the veteran with a malignant melanoma in-situ on the left lower back, and a May 2005 entry noted that the veteran was to undergo Moh's surgery for a right nasal alar melanoma in-situ. Here, the record shows that the veteran received the Vietnam service medal and the Vietnam campaign medal for his service in Vietnam. Therefore, exposure to herbicides is conceded. 38 C.F.R. § 3.307(a)(6)(iii). However, malignant melanoma and basal/squamous cell carcinoma are not diseases noted under 38 C.F.R. § 3.309 as diseases having a positive association with herbicide exposure. Therefore, the veteran's malignant melanoma is not presumed to be the result of an in-service disease or injury. Further, the record does not contain medical evidence linking the veteran's malignant melanoma to herbicide exposure. The Board notes that presumptive service connection procedure does not foreclose proof of direct service connection, and the claimant has a right to prove causation. See Combee v. Brown, 34 F.3d 1039 (1994). Here, as noted above, although the treatment records do reveal a current diagnosis of malignant melanoma, the veteran's SMRs do not contain complaints or treatment related to skin cancer, or any other type of skin condition. Further, his entrance and discharge examinations reveal a normal clinical evaluation for the skin, and the first post-service medical evidence in the record diagnosing the veteran with skin cancer was not until January 2005, more than 30 years after separation from service. The Board does not doubt the sincerity of the veteran's beliefs that his disability is related to herbicide exposure. However, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, to include commenting on the etiology of his disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (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"). In the absence of any evidence of complaints or treatment in service, the length of time between his separation and the first diagnosis, and the absence of competent medical evidence that the veteran's disability is related to service, the Board finds that the preponderance of the evidence is granting service connection for malignant melanoma on a direct basis or presumptive basis as due to herbicide exposure is not warranted. Enlarged Prostate The record contains outpatient treatment records from the Dallas VA medical center (VAMC) dated from July 2003 through January 2007, which contain multiple entries, the earliest of which is in August 2004, diagnosing the veteran with benign hypertrophy of the prostate. Further, a February 2005 VA examination noted that the veteran's prostate was enlarged and diagnosed him with benign prostatic hypertrophy, but noted that there was no evidence of prostate cancer. Here, as noted above, exposure to herbicides is conceded because the veteran served in Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). However, although prostate cancer is a disease noted to have a positive association with herbicide exposure, the veteran has not been diagnosed with prostate cancer; and his diagnosis of benign prostatic hypertrophy is not a disease noted under 38 C.F.R. § 3.309 as a disease having a positive association with herbicide exposure. Therefore, the veteran's benign prostatic hypertrophy is not presumed to be the result of an in-service disease or injury, and the record does not contain medical evidence linking the veteran's benign hypertrophy of the prostate to herbicide exposure. Regarding service connection on a direct basis, the veteran's SMRs do not contain complaints or treatment related to the prostate, and his entrance and discharge examinations reveal a normal clinical evaluation for the genitourinary system. In addition, the first post-service medical evidence in the record diagnosing the veteran with benign hypertrophy of the prostate was not until August 2004, more than 30 years after leaving the military. In sum, there is no competent evidence medically relating malignant melanoma or an enlarged prostate to military service, including in-service herbicide exposure. Absent a medical opinion in the record of a relationship to military service in general, or specifically, to exposure to herbicide agents during military service and the development of skin cancer or an enlarged prostate, the veteran's claim for service connection for malignant melanoma and an enlarged prostate must be denied. Further, there has been no continuity of symptomatology since his period of military service for either disability, consequently, there is no basis for concluding that any current disability is traceable to the veteran's period of military service. Although the veteran contends that his skin cancer, specifically malignant melanoma, and enlarged prostate were caused by his exposure to herbicide agents while in Vietnam, there is no indication, and he does not contend, that he has any education, training, or experience that would make him competent to render medical opinions concerning etiological relationships. See Espiritu, supra; 38 C.F.R. § 3.159(a)(1) (2007). In short, the Board finds that the preponderance of the evidence is granting service connection for an enlarged prostate is not warranted. ORDER Entitlement to service connection for malignant melanoma is denied. Entitlement to service connection for an enlarged prostate is denied. ____________________________________________ MICHAEL LANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs