Citation Nr: 0813318 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-16 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for erythematous scaling papules of the left temple and nose, claimed as pre-cancer of face, to include as secondary to herbicide exposure and/or sun exposure. ATTORNEY FOR THE BOARD L. Kirscher Strauss, Associate Counsel INTRODUCTION The veteran served on active military service from December 1964 to October 1968. The appeal comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston- Salem, North Carolina, which denied entitlement to service connection for erythematous scaling papules of the left temple and nose, claimed as pre-cancer of face, to include as secondary to herbicide exposure and/or sun exposure. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The veteran was not stationed in the Republic of Vietnam during his period of active service. 3. A skin condition, erythematous scaling papules, is first shown many years after the veteran's separation from service, and is not shown to be related to events, disease, or injury during military service. CONCLUSION OF LAW A skin disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1116, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. In this case, the veteran's claim for service connection for a skin condition was received in October 2004. Thereafter, he was notified of the provisions of the VCAA by the RO in correspondence dated in November 2004, March 2005, and July 2005. These letters notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claim, identified the veteran's duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding VCAA. Thereafter, the claim was reviewed and a statement of the case was issued in April 2006. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 07-7130 (Fed. Cir. September 17, 2007). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to this matter was provided in July 2006. The veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. A review of the claims file also shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claim during the course of this appeal. His service treatment records, service personnel records, and all relevant private and VA treatment records pertaining to his claimed disability have been obtained and associated with his claims file. The veteran was also provided a VA medical examination and opinion to assess the current nature and etiology of his claimed skin disability. Furthermore, he has not identified any additional, relevant evidence that has not otherwise been requested or obtained. The veteran has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claim. Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. See 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The veteran is entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents. See 38 C.F.R. §§ 3.307, 3.309 (2007); 38 U.S.C.A. § 1116 (West 2002 & Supp. 2006). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 67 Fed. Reg. 42600-42608 (2002). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2007). Factual Background The veteran contends that he suffered from a skin disability as a result of an in-service event, specifically herbicide exposure and/or sun exposure. Having carefully considered the claim in light of the record and the applicable law, the Board finds that the preponderance of the evidence is against the claim and the appeal will be denied. Service treatment records do not show that the veteran was diagnosed with a chronic skin disability during active service. The Report of Medical Examination dated December 1964 documents normal skin findings. In October 1966, he was treated with lotion for intertrigo of the scrotum. In a March 1968 service treatment record the examiner noted a small, pimple-like lesion on the left nostril, which occasionally became inflamed. Prescribed treatment included hot soaks and Bacitracin. An August 1968 service discharge examination report notes normal skin findings and a pimple in the nose in the past with no recurrence. The accompanying Report of Medical History indicated no problems associated with skin disorders. Service personnel records, including the veteran's DD Form 214, reflect that the veteran did not serve in the Republic of Vietnam during active service. His military occupational specialty was noted to be a waste water processing specialist. It was 34 years after the veteran's separation from service, that a skin disorder was documented. Post-service VA treatment records dated July 2002 diagnosed poison ivy, a rash, and that the veteran's skin was warm and dry. A March 2004 VA clinic note shows that the veteran had a red scaling papule on his right nasal side wall and on his right temple. In March 2004 the examiner observed four red scaling papules helices on the veteran's temples and assessed actinic keratosis. VA treatment notes dated in September 2004 indicate a history of actinic keratoses, including three erythematous scaling papules on the left temple and nose. Finally, in December 2004 the veteran complained of a recurrent, raised, red area on the bridge of his nose that had recently erupted. In a March 2005 lay statement, the veteran's fellow serviceman reported that he had worked with the veteran at MacDill Air Force Base (AFB) and that they had handled various chemicals, including methatolodin and dianozen. Subsequently, in his June 2005 notice of disagreement, the veteran indicated that he had handled chemicals and had been exposed to the sun at MacDill AFB. In an August 2005 statement, a private physician, R.H., M.D., specifically indicated that the veteran's skin condition was a result of sun damage that he received earlier in life and was not related to herbicide exposure or any other military/industrial chemical source. In a March 2006 VA examination report, the veteran stated that he had been diagnosed in 2001 with pre-cancerous lesions most consistent with actinic keratoses. He reported that he received cryotherapy treatment and that he has never been diagnosed with skin cancer. Physical examination findings were noted as a few scaling erythematous papules on the forehead and cheeks. He had one erythematous papule on the left ear more consistent with chondrodermatitis. The examiner reviewed the veteran's claims file and diagnosed actinic keratoses. The examiner then opined that actinic keratoses are thought to be possibly related to long term sun exposure, and decreased sun exposure has shown to decrease the number of lesions. The examiner further noted that actinic keratoses are felt to be due to cumulative sun exposure and that decreased sun exposure is felt to reduce further lesions. The examiner concluded that the veteran's actinic keratoses was less likely due to his five years in the military service and more likely due to sun exposure over longer periods of time. Analysis Exposure to herbicides is not conceded in this case, as service personnel records show that the veteran did not serve in the Republic of Vietnam during active service. In addition, none of the veteran's diagnosed skin disabilities are classified as one of the enumerated diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e) (2007). Consequently, the veteran's claim must be denied on this basis. However, the regulations governing presumptive service connection for herbicide exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). Accordingly, the Board will proceed to evaluate the veteran's claim under the provisions governing direct service connection, 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303. As noted above, service treatment records do not reveal any findings, diagnosis, or treatment of a chronic skin disability during active service. The treatment of the intertrigo and the nasal lesion were acute and transitory and apparently resolved without residual disability, as indicated by only a single notation in the service treatment records for each incident. Objective medical findings of a skin disability are first shown in 2004, many years after separation from active service and cannot be presumed to have been incurred during service. Further, in August 2005, the veteran's private physician specifically indicated that the veteran's skin condition was a result of sun damage that he received earlier in life and was not related to herbicide exposure or any other military/industrial chemical source. The record also does not include any competent medical opinion establishing a nexus or medical relationship between a current skin disability diagnosed post-service and claimed herbicide exposure. The Board recognizes that the August 2005 private physician's statement included an opinion that the veteran's skin condition was the result of sun damage received earlier in life. In this regard, it should be noted that the physician did not specify when, in the veteran's earlier life, this exposure began. However, in the March 2006 VA examination report, the VA examiner reviewed the veteran's claims file, conducted a thorough physical examination, and concluded that the veteran's actinic keratoses were less likely due to his five years in the military service and more likely due to sun exposure over longer periods of time. In this case, the Board regards the March 2006 VA examiner's opinion as the most persuasive evidence of record concerning whether the veteran suffers from a current skin disability as a result of sun exposure during active service, as it was prepared with a longitudinal review of the medical evidence and was the product of a detailed physical examination. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). In addition, the August 2005 statement from the veteran's private physician simply indicated that the veteran's actinic keratoses were the result of sun damage received earlier in life. He did not provide any information specifically indicating that the veteran's current skin condition was related to claimed in- service sun exposure. Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Consequently, persuasive and competent medical evidence of record does not establish a nexus or medical relationship between the veteran's current skin disability diagnosed post-service and any claimed in-service sun exposure. In connection with the claim, the Board also has considered the assertions the veteran and his fellow serviceman have advanced on appeal in multiple written statements. However, the veteran cannot establish a service connection claim on the basis of these assertions alone. While the Board does not doubt the sincerity of the veteran's belief that his current skin disability is associated with military service, this claim turns on a medical matter-the relationship between current disability and service. Questions of medical diagnosis and causation are within the province of medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As a layperson lacking the appropriate medical training or expertise, the veteran simply is not competent to render a probative (i.e., persuasive) opinion on such a medical matter. 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"). Hence, these assertions do not constitute persuasive evidence in support of the claim for service connection. For the foregoing reasons, the claim for service connection for erythematous scaling papules of the left temple and nose, to include as secondary to herbicide exposure and/or sun exposure, must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Entitlement to service connection for erythematous scaling papules of the left temple and nose, claimed as pre-cancer of face, to include as secondary to herbicide exposure and/or sun exposure, is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs