Citation Nr: 1123686 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 09-47 982 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for carcinoma of the nose, claimed as secondary to herbicide exposure. 2. Entitlement to service connection for a right shoulder disability, claimed as secondary to a service-connected left shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD A. Nigam, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating action by the VA RO. In May 2010, the Veteran was afforded a Travel Board hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is associated with the claims file. Of preliminary importance, in March 2011, the Veteran submitted written statements and medical evidence directly for the Board's consideration. The Veteran's representative supplied a waiver of his right to have this evidence initially considered by the RO along with these statements and evidence. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1304 (2010). FINDINGS OF FACT 1. The Veteran has confirmed service in the Republic of Vietnam. 2. Carcinoma of the nose is not etiologically related to active service, to include herbicide exposure. 3. A right shoulder disorder is not etiologically related to active service or to a service-connected disability. CONCLUSIONS OF LAW 1. Carcinoma of the nose is not due to or aggravated by active service, to include herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). 2. A right shoulder disorder is not due to or aggravated by active service and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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; and (3) that the claimant is expected to provide. In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in June 2009 letter, which also served to notify the Veteran of VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Since the Veteran had a meaningful opportunity to participate in the adjudication process, there has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Overton v. Nicholson, 20 Vet. App. 427 (2006); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006); cf. Locklear v. Nicholson, 20 Vet. App. 410, 415-16 (2006). Thus, VA satisfied its duty to notify the Veteran. VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claims adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment described by the Veteran. Specifically, the Veteran has been afforded VA examinations to address the nature and etiology of his claimed disorders. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Hence, the Board is satisfied that all reasonable efforts to develop the record have been made with respect to the claims. As discussed, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process, identifying pertinent medical evidence and submitting evidence. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any defect in the sequence of events or content of the notice is not shown to have a prejudicial effect on the case or otherwise to cause injury to the Veteran. Therefore, any such defect is harmless and does not prohibit consideration of the matters addressed hereinbelow. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). Service connection may also be granted for disability that is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was revised in order to more thoroughly reflect the holding in Allen, that secondary service connection is available for chronic aggravation of a nonservice-connected disorder. The revised § 3.310(b) provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service- connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity due to the natural progress of the disease from the current level. To establish direct service connection for an injury, a veteran is required to show (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). In cases where the veteran cannot establish some of these elements, a veteran can instead establish continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the a veteran is required to show "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. As to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the claimed disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As discussed below, the record establishes that the Veteran served on active duty in the Republic of Vietnam. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307. Particular diseases are deemed associated with herbicide exposure, under VA law, and shall be service-connected if a veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) are met, and they become manifest to a degree of 10 percent or more, even though there is no record of such disease during service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran asserts that he currently suffers from a skin disability manifested by carcinoma of the nose that is due to herbicide exposure during service in Vietnam. Specifically, he has testified that 3 to 4 years prior to the date of the Board hearing he was diagnosed with two types of skin cancer. At the hearing, he denied complaining of any skin or nose problems in service, but claimed that he was stationed in close proximity to Agent Orange tanks, which he believed caused him to develop carcinoma of the nose. The Veteran also contends that he suffers from a right shoulder disorder that is secondary to his left shoulder disability. He has testified that after service he was employed as a pipe-fitter, and that because of his left shoulder disability he had to over-compensate by using his right arm more often, putting undue strain on the right shoulder. He acknowledged that he had a torn rotator cuff in the right shoulder that caused him to seek treatment from a surgeon and undergo cortisone shots. The Veteran claimed that he has been undergoing treatment for the right shoulder for the past 20 years. Further, the Veteran's wife of 45 years testified that she witnessed that the Veteran's right shoulder condition had progressively gotten worse over the years because of his work. She observed that he favored his right arm a lot more than his left arm, which caused him to take different medications and to attend physical therapy. By way of procedural history, he was granted service connection for the left shoulder in an April 1968 RO rating decision, and assigned a 10 percent evaluation, effective from December 2, 1967. With respect to the claimed skin disability, service records confirm that the Veteran was stationed in Chu Lai, in the Quang Nam province of Vietnam during his active duty service, and hence may qualify for the presumption delineated in 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. §§ 3.307 and 3.309(e), which indicates that certain diseases may be presumed to have resulted from exposure to certain herbicide agents such as Agent Orange. Also, the Board concedes that the Veteran was diagnosed with basal cell carcinoma of the nose in a July 2008 private surgical pathology evaluation. Private treatment records are negative for diagnosis of any other type of cancer. Notably, basal cell carcinoma of the nose is not listed as a disease process that has been associated with exposure to certain herbicide agents by regulation. See 38 C.F.R. § 3.309(e). It is pertinent to note that the service treatment records are negative for complaints or findings referable to a skin disorder. Furthermore, the record does not reflect complaints of or treatment for a skin disorder until many years after the Veteran was discharged from service. Thus, there is strong evidence against a finding of any continuity of symptomatology since service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). In addition, as noted, the medical records have recorded a consistent history of skin manifestations beginning no earlier than 2008. In fact, a VA examination conducted in January 1968 shows negative findings on head, face, neck examination, and reflects findings of a no more than a scar over the left shoulder without pain or tenderness on skin examination. In conjunction with the current appeal, the Veteran underwent a VA skin diseases examination in July 2009, during which he provided a history of treatment for basal cell carcinoma of the nose in July 2008. The examiner noted there had been skin disease treatment in the past 12 months for basal cell carcinoma of the nose in the form of topical cream, but corticosteroids and immunosuppressive treatments had not been used. The examiner observed no skin lesions on nose, normal skin on nose, and total and exposed body surface area involved was zero. The Veteran was diagnosed with status-post excision of basal cell carcinoma from nose, none at present, and with a residual scar from excision of basal cell carcinoma. The examiner noted that basal and squamous cell carcinomas were not listed as a presumptive condition caused by Agent Orange exposure. Significantly, there is no competent and persuasive evidence of a nexus between any current condition and documented event or incident of service. Moreover, there is no medical opinion to support the Veteran's claim. The Board notes that when the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). In essence, there is no evidence in support of the Veteran's claim other than his own statements. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). Although the Board finds the Veteran and his spouse credible in their assertions that he currently suffers from carcinoma of the nose, and though he is competent to report about his personal experiences in service; as a lay person, neither the Veteran nor his spouse are competent to say that his condition is related to Agent Orange exposure during his service. Further, the Veteran has not submitted any competent evidence to support the lay assertions that his skin cancer is causally linked to herbicide exposure or other incident of his period of active service. Accordingly, on this record, the Board finds that the preponderance of the evidence is against the claim of service connection for carcinoma of the nose and that the benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. With respect to the claimed right shoulder disability, the Board finds that the preponderance of the evidence goes against the claim. Notably, the Veteran first underwent private treatment for his right shoulder in October 2007, when he was diagnosed with a partial right rotator cuff tear, subacromial impingement, and acromioclavicular (AC) joint arthritis. A November 2007 private bone and joint center treatment record shows complaints of right shoulder pain for probably a year that is worse with certain motions and positions. Here, the Veteran denied specific injury to the shoulder, or any clicking, popping, or catching in the shoulder. X-rays of the right shoulder showed AC joint arthritis, just about a type 3 acromion, with a significant spur. The Veteran was diagnosed with right shoulder subacromial impingement with AC joint arthritis and partial cuff tear. In conjunction with the current appeal, the Veteran underwent a VA joints examination in June 2009. Here, the Veteran described right shoulder pain since 2000, and indicated that he would have pain in the shoulder and see his primary care physician who would perform joint injections, and then he would undergo physical therapy. The Veteran gave a post-service employment history of working as a pipe fitter for 42 years, which required him to carry heavy pipes on his right shoulder. He denied specific trauma to the shoulder, but endorsed symptoms of daily pain in the right shoulder that is worse with cold/damp weather. During this examination, the Veteran was diagnosed with right moderate acromioclavicular joint osteoarthrosis with mild to moderate degenerative changes in the glenohumeral joint. The examiner opined that the Veteran's right shoulder condition was not caused by or a result of his service-connected left shoulder disability or active military service. The examiner based the opinion on a finding that there is no credible scientific medical literature that supports that a left shoulder disability causes a right shoulder disorder, and that there is no medical literature to support the connection between active military service and a right shoulder disorder. The examiner noted that the Veteran worked as a fitter, which is known to cause degenerative arthritis in the shoulder due to working over head and carrying heavy equipment. The examiner concluded that the right shoulder shows degenerative changes which were not seen in the left shoulder and the cause of these changes were more likely the result of the Veteran's occupation and advancing age after his active duty military service. Most recently, in a statement dated in June 2010, a private family practitioner opined that the Veteran suffered from a right rotator cuff tear that is chronic and degenerative in nature, which the physician believed was directly related to his service-connected left shoulder injury. Although the Board recognizes the favorable nexus opinion of the June 2010 private physician, the Board finds that the findings of the June 2009 VA examination to be the most probative and dispositive evidence on the current medical condition question. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (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 weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). The Board has the authority to "discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this regard, the Board notes that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). An award of service connection may not be based on resort to speculation or remote possibility. See 38 C.F.R. § 3.102 (2009); see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Bostain v. West, 11 Vet. App. 124, 127 (1998). Also, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). While the June 2010 private physician proffered an opinion as to the etiology of the Veteran's right shoulder disorder, the physician failed to support the conclusion with objective medical evidence. The June 2009 VA examiner, however, based the opinion on review of the evidence in the claims file, the Veteran's subjective statements, his employment history, and his age, and substantiated the conclusion by comparing degenerative changes to the right shoulder that were not seen on the left. Finally, there is no additional evidence in support of the Veteran's claim other than his own statements and those of his spouse's. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Board must assess the competency and credibility of lay statements regarding in-service or continuous postservice symptomatology. As to this, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998); see also 38 C.F.R. § 3.159(a)(1) and (2) defining, respectively, competent medical and lay evidence. Although the Board finds the Veteran's and his spouse's testimony credible, they are not shown to be competent to provide an opinion linking it to an injury or disease in service or his service-connected left shoulder disability. The Board notes that where the determinative issue involves medical causation competent evidence is required. See Woehlaert v. Nicholson, 21 Vet. App. at 462; Routen v. Brown, 10 Vet. App. at 186. Accordingly, as the preponderance of the evidence is against the claim, the claim of service connection for a right shoulder disorder must be denied. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER Service connection for carcinoma of the nose, claimed as secondary to herbicide exposure is denied. Service connection for a right shoulder disability, claimed as secondary to a service-connected left shoulder disability is denied. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs