Citation Nr: 0811827 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-33 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for basal cell carcinoma of the left forearm. 2. Entitlement to service connection for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Cryan, Associate Counsel INTRODUCTION The veteran served on active duty from October 1970 to August 1974, from August 1978 to September 1981, and from October 1984 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin dated in October 2006, which denied service connection for basal cell carcinoma of the right side of the neck and left forearm and degenerative disc disease of the lumbar spine. Service connection for basal cell carcinoma of the right side of the neck was later granted by the RO in a December 2006 rating decision. Consequently, as the veteran was granted the benefit sought with regard to the basal cell carcinoma of the right side of the neck, this issue is not currently on appeal. The veteran was informed in March 2007 that he was scheduled for a hearing at the RO in May 2007 with regard to the issues of entitlement to service connection for basal cell carcinoma of the left forearm and degenerative disc disease of the lumbar spine. The veteran withdrew his request for a personal hearing by way of a May 2007 statement. Accordingly, the Board will adjudicate the claims based on the evidence of record. 38 C.F.R. § 20.704(e) (2007). The Board notes that the veteran submitted a notice of disagreement with an initial noncompensable rating for degenerative joint disease of the right third metacarpophalangeal joint, which was granted by way of a June 2004 rating decision. He argued that his disability warranted a 10 percent disability rating. The RO later granted the requested 10 percent rating for this disability by way of a March 2006 decision. Consequently, as the veteran was granted the benefit sought, this issue is not on appeal. The Board notes that the veteran also expressed disagreement with the June 2004 rating decision that denied service connection for arthritis of the left hand. This was done by way of a July 2004 statement. The RO has not yet issued a statement of the case (SOC) with regard to this issue. (Supplemental statements of the case have been issued that address this claim, but such an action is not appropriate. 38 C.F.R. § 19.31(a).) The Board will therefore remand the claim of entitlement to service connection for arthritis of the left hand. See Manlincon v. West, 12 Vet. App. 238, 240 (1990). (The issue has not been listed on the title page of this decision because, absent a substantive appeal, the Board does not have jurisdiction. Bernard v. Brown, 4 Vet. App. 384 (1994); Hazan v. Gober, 10 Vet. App. 511 (1997).) FINDINGS OF FACT 1. The veteran does not have basal cell carcinoma of the left forearm attributable to his period of military service. 2. The veteran has degenerative disc disease of the lumbar spine that is likely related to his military service. CONCLUSIONS OF LAW 1. The veteran does not have basal cell carcinoma of the left forearm that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2007). 2. The veteran has degenerative disc disease of the lumbar spine that is the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 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 AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Specifically regarding VA's duty to notify, through notification letters to the veteran dated in October 2005 and May 2006 he was apprised what the evidence must show to establish entitlement to the specific 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 submit any evidence he had pertaining to his claim. The RO also provided a statement of the case (SOC) reporting the results of its review of issues on appeal 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 by way of letters dated in March 2006, May 2006, and June 2006. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Regarding VA's duty to assist, the RO obtained the veteran's service medical records (SMRs), and VA and private medical records, and secured several examinations in furtherance of these claims. VA has no duty to inform or assist that was unmet. II. Background The veteran is seeking entitlement to service connection for basal cell carcinoma of the left forearm and degenerative disc disease of the lumbar spine. Service medical records (SMRs) associated with the claims file reveal complaints of left-sided low back pain and gluteal pain following push-ups in February 1996. In October 1997 the veteran reported a pedunculated, flesh-colored mole of the right lower brow. In July 1999 the veteran was seen for a mole of the right temple, which was reported to be actinic keratosis. In February 2000 the veteran was seen for complaints of mid-thoracic back pain, which were attributed to a T-4 dysfunction. He was also noted to have a history of scoliosis. The veteran's May 2000 retirement physical examination revealed a normal clinical evaluation of the veteran's skin and spine. The veteran was reported to have arthritis and back problems at T-5, T-6 and T-7 at that time. The veteran was afforded a VA examination in April 2000. Examination of the lumbar spine revealed no painful motion, muscle spasm, weakness or tenderness. A very minimal concavity to the right was apparent along the upper thoracic region with trace left paraspinal fullness. Associated with the claims file are treatment reports from Martin Army Community Hospital dated from August 2000 to May 2001. The records reveal that the veteran was noted to have a past medical history of osteoarthritis in August 2000 and scoliosis at T-2 to the left and T-7 to the right. Also associated with the claims file are VA outpatient treatment reports dated from December 2001 to November 2007. In December 2001 the veteran was seen for a lesion on the left side of his neck which was noted to likely be eczema. The veteran was seen in March 2002 to establish primary care services. He was noted to have a history of "psoriasis" of the face. Examination of the skin revealed no rashes, lesions, or areas of breakdown. A skin examination of the arms performed in December 2005 was negative for any lesions. A skin examination performed in January 2007 revealed scaly erythematous appearing papules and plaques on the left forearm. He was assessed with seborrheic keratosis and actinic keratosis. VA examination reports associated with the claims file dated in May 2003, February 2004, May 2004, and February 2006 were unrelated the issues on appeal. The veteran was afforded a VA spine examination in December 2005. The examiner reviewed the veteran's service medical records. The examiner diagnosed the veteran with mild lumbar degenerative disc disease and degenerative joint disease. The examiner opined that although the veteran may have had occasional episodes of back strain in the military, based on multiple reports of negative chronic low back pain while in the military, it was her opinion that the veteran's current low back disability was unrelated to his military service. Associated with the claims file are private treatment reports from Dean East Dermatology, dated from September 2005 to August 2006. In September 2005, November 2005, and December 2005 the veteran was noted to have a lesion on his neck. The veteran was treated again for lesions in January 2006. He was reported to have biopsy-proven basal cell skin cancers on the right neck behind and below the ear and on the left medial arm and an actinic keratosis of the left lateral arm. The veteran attributed the lesions to sun exposure while in the military. In April 2006 the veteran was treated for an unknown resolving lesion on the left forearm and four actinic keratoses on the left dorsal forearm. The examiner noted that the veteran was treated for a basal cell cancer of the left forearm and behind the right ear in January 2006. The veteran was afforded a VA dermatology examination in August 2006. The examiner reviewed the veteran's claims file. The examiner diagnosed the veteran with basal cell carcinoma of the right neck and left forearm. He opined that it was at least as likely as not that the veteran's skin lesions were present prior to July 2000. The examiner noted that the lesion on the right side of the veteran's neck was present prior to his discharge but the veteran did not seek any treatment until 2001. An addendum opinion was obtained by another physician in September 2006. The examiner reviewed the claims file but stated that she was unable to provide an opinion regarding the left arm lesion because she was unable to find any record of a left arm lesion in 2001. The same examiner was again requested to provide an opinion regarding the left arm lesion in October 2006 at which time she noted that the veteran was seen in service for treatment of a flesh colored mole in the right lower brow area in 1997 and an actinic keratosis of the right temple/sideburn in July 1999. She opined that neither the flesh colored mole seen in 1997 nor the right temple actinic keratosis was related to the basal cell carcinomas excised in December 2005. She said the basal cells were not found in the same locations as the lesions removed in service in 1997 and 1999. She noted that neither a flesh colored more nor an actinic keratosis was suggestive of basal cell carcinoma and neither of those types of lesions were known to be precursors of basal cell carcinomas. She concluded that the skin conditions were unrelated to each other and none of the conditions would likely be mistaken for the other. Associated with the claims file are several statements from N. Pekson-Reyes, M.D. In an August 2005 letter Dr. Pekson- Reyes reported that the veteran was well-known to her as a patient during her medical residency at Clark Air Base in the Philippines during the period from October 1987 to December 1990. She reported that during that time period the veteran had, among other things, complaints of low back pain. She said the pain in the veteran's low back pre-dated 1987. She said the veteran also had scoliosis at T-4 which was much more severe than his low back pain. She concluded that as a result of her three-year association with the veteran she was able to state that his symptoms were congruent with a diagnosis of pre-existing lumbar degenerative disc disease exacerbated during a July 1990 combat training exercise. Dr. Pekson-Reyes also submitted a letter dated in May 2007 in which she reported that she was closely associated with the veteran during her three-year medical residency at Clark Air Base and that she remembered his medical conditions during the time period from October 1987 to December 1990. She said she saw the veteran frequently during that time period for complaints of back pain from upper back scoliosis and lumbar degenerative disc disease. She said the veteran reported that his lower back pain had started one year prior to his arrival at Clark Air Base when he was transferred from a pediatric unit to an adult male surgery unit, which required a great deal of lifting and seemed to have initiated his lower back condition. Dr. Pekson-Reyes stated that the veteran also worked on a multi-service medical/surgical unit at Clark Air Base where he continued to suffer upper and lower back pain, which he kept in check with non-steroidal anti-inflammatory drugs (NSAIDs) and careful body mechanics. She concluded that the veteran's low back condition was severely exacerbated during a training exercise in July 1990. She noted that she had a clear recognition of this event as it happened at the end of her medical residency. Associated with the claims file is a May 2007 statement from T. Kirchberg, D.C. Dr. Kirchberg reported that he had treated the veteran for complaints of lower back pain, cervical spine pain, and intermittent scoliosis at T-4 since November 2006. He said, based on a review of the veteran's history, physical examination, review of systems, orthopedic and neurological examinations, and motion palpation he was able to assess his current spinal conditions and determine that the veteran has lumbosacral joint dysfunction with associated lower back pain and weakness. Dr. Kirchberg stated that due to the duration of the veteran's complaints of lower back pain prior to October 1987, and lack of radiculopathy to the lower extremities, the condition is consistent with disc degeneration of the lower lumbar spine. Dr. Kirchberg said he reviewed the August 2005 letter from Dr. Pekson-Reyes and he agreed with her assessment that the veteran's lumbar disc degeneration began prior to October 1987. III. Analysis The law provides that 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 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). In addition, certain chronic diseases, including malignant tumors, may be presumed to have been incurred during service if any such disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court) lay observation is competent. If chronicity is not shown, service connection may still be established on the basis of 38 C.F.R. §3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to pertinent symptomatology experienced since service. Savage v. Gober, 10 Vet. App. 488 (1997). 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. See Pond v. West, 12 Vet. App. 341, 346 (1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995). Basal Cell Carcinoma of the Left Forearm As noted above, there is medical evidence of treatment for basal cell carcinoma of the left forearm in January 2006. However, there is no showing of a relationship to the veteran's period of military service. The veteran's service medical records do not document any treatment related to basal carcinoma. While the August 2006 VA examiner opined that the veteran's skin lesions were at least as likely as not present prior to July 2000, he did not provide a rationale for his opinion. The October 2006 examiner who provided an addendum opinion reviewed the claims file and service medical records and noted that the veteran was seen in service for treatment of a flesh colored mole in the right lower brow area in 1997 and an actinic keratosis of the right temple/sideburn in July 1999. She opined that neither the flesh colored mole seen in 1997 nor the right temple actinic keratosis were related to the basal cell carcinomas excised in December 2005. She said the basal cells were not found in the same locations as the lesions removed in service in 1997 and 1999. She noted that neither a flesh colored mole or an actinic keratosis are suggestive of basal cell carcinoma and neither of those types of lesions were known to be precursors of basal cell carcinomas. She concluded that the skin conditions were unrelated to each other and none of the conditions would likely be mistaken for the other. In short, there is no competent evidence linking the basal cell carcinoma of the left forearm to service or within a year of the veteran's separation from service. The absence of such nexus evidence leads to the conclusion that the preponderance of the evidence is against the claim. The Board notes that the veteran has alleged that he has basal cell carcinoma of the left forearm related to his period of military service. While the veteran is capable of providing information regarding his symptoms, as a layperson, he is not qualified to offer medical opinions. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting service connection for basal cell carcinoma of the left forearm. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). Degenerative Disc Disease of the Lumbar Spine Here, there is medical evidence of a current diagnosis of degenerative disc disease of the lumbar spine. There is also medical evidence of a complaint of low back pain in service. While the December 2005 VA examiner opined that although the veteran may have had occasional episodes of back strain in the military, based on multiple reports of negative chronic low back pain while in the military, it was her opinion that the veteran's current low back disability was unrelated to his military service, Dr. Pekson-Reyes reported that the veteran was in fact well known to her as a patient during her medical residency at Clark Air Base in the Philippines during the period from October 1987 to December 1990, while the veteran was in service. She reported that during that time period the veteran had, among other things, complaints of low back pain which pre-dated 1987. She concluded that as a result of her three-year association with the veteran she was able to state that his symptoms were congruent with a diagnosis of pre-existing lumbar degenerative disc disease exacerbated during a July 1990 combat training exercise. Additionally, Dr. Kirchberg stated that due to the duration of the veteran's complaints of lower back pain prior to October 1987, and lack of radiculopathy to the lower extremities, his low back condition was consistent with disc degeneration of the lower lumbar spine. Dr. Kirchberg reviewed the August 2005 letter from Dr. Pekson-Reyes and he agreed with her assessment that the veteran's lumbar disc degeneration began prior to October 1987. Consequently, affording the veteran the benefit of the doubt, the record supports a finding that the veteran's degenerative disc disease of the lumbar spine is likely related to military service. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for basal cell carcinoma of the left forearm is denied. Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. REMAND As reported in the introduction, the Board notes that, after the veteran received notice of the June 2004 rating decision that had denied service connection for left hand arthritis, he voiced his disagreement. This was done in July 2004. Evidence of record reflects that the RO issued a SOC in August 2005 but failed to include the left hand arthritis issue. Several supplemental statements of the case were issued with regard to this issue-in March 2006 and December 2006. Nevertheless, a SOC has not yet been issued. In situations such as this, where the veteran has filed a notice of disagreement (NOD), but no SOC has been issued, the United States Court of Appeals for Veterans Claims (Court) has held that the Board should remand the matter for the issuance of a SOC. See Manlincon, supra. Although SSOCs have been issued there is a rule that prohibits such a process. 38 C.F.R. § 19.31(a) ("In no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case, or to respond to a notice of disagreement on newly appealed issues that were not addressed in the Statement of the Case.") Accordingly, the case is REMANDED for the following action: Re-examine the issue of entitlement to service connection for arthritis of the left hand addressed by the veteran in his July 2004 statement. If no additional development is required, prepare a SOC in accordance with 38 C.F.R. § 19.29 (2007), unless the matter is resolved by granting the benefit sought, or by the veteran's withdrawal of the NOD. If, and only if, the veteran files a timely substantive appeal, the issue should be returned to the Board. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by VA. The veteran has the right to submit additional evidence and argument on the matter 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 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). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs