Citation Nr: 1124339 Decision Date: 06/27/11 Archive Date: 07/06/11 DOCKET NO. 09-38 695 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to service connection for a claimed basal cell carcinoma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from September 1942 to January 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 decision issued by the RO. The Board remanded this matter for additional development of the record in January 2010. In March 2008, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran's claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is found to have presented credible lay assertions of having prolonged exposure to excessive sunlight incident to his duties while serving in the Pacific theater during World War II. 2. The Veteran is shown to have been treated for a sunburn injury, including one of a second degree involving the back, while serving on Guam in 1943. 3. The currently demonstrated residuals of basal cell carcinomas of the forehead and face are shown as likely as not to be due to skin damage caused by the exposure to sunlight that began during the Veteran' active service during World War II. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by the residuals of basal cell carcinomas of the forehead and face is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Since the Board is granting service connection for basal cell carcinoma, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2010) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required. II. Applicable laws and regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection or service-connected aggravation for a present disability, the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d at 1163, 1166-67 (Fed. Cir. 2004). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, if a veteran served continuously for ninety (90) or more days during a period of war or after December 31, 1946, and if a malignant tumor became manifest to a degree of 10 percent or more within one year from the date of the veteran's termination of such service, that condition would be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. Such a presumption would be rebuttable, however, by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. III. Analysis The Veteran asserts that his current basal cell carcinoma is the result of his sun exposure during his active service in World War II. See the Veteran's testimony at the March 2008 hearing. The Veteran provided testimony during his recent hearing in that he reported working outside while serving on Guam, as well as being treated for a serious sunburn injury during service. The service treatment records show that the Veteran was treated for a sunburn during service. A July 1943 record shows that he received treatment for first degree sunburns to his chest and upper abdomen and second degree sunburn on his back. Significantly, the Veteran testified that he did not use any sun protection during service and that his face was exposed to the sun. These treatment records, in the Board's opinion, serve to confirm the Veteran's assertion that he likely sustained serious damage to the skin of his forehead and face while on active duty. Thus, the Board finds the Veteran's report of significant in-service exposure to the sun to be credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran has one of the elements required to substantiate a claim for service connection, namely evidence of in-service incurrence of injury (sunburns and exposure to the sun). The Veteran also has another of the elements required to substantiate a claim for service connection, namely a current basal cell carcinoma diagnosis. See the May 2010 VA examination that provided a diagnosis of basal cell carcinoma to the face and forehead. A September 2009 private treatment record noted a diagnosis of malignant neoplasm of the skin on the face. The private treatment records show that basal cell carcinoma was first diagnosed in 1987. He had been treated for skin cancer on several occasions since that time. The Veteran was afforded two VA examinations to determine if his current diagnosis of basal cell carcinoma was due to his sun exposure during his military service. The same VA examiner conducted both examinations. At the February 2009 examination, the Veteran reported first being diagnosed with basal cell carcinoma in 1987. He had lesions around his nose, cheek and eyebrows. He also has had plastic surgery on his right cheek due to the basal cell carcinoma. Upon examination, there were no cancerous lesions around his nose, cheek face or forehead areas. There was a well-healed and nontender incision mark on his right cheek. The examiner diagnosed the Veteran with basal cell carcinoma with status post excision. The examiner opined that the Veteran's basal cell carcinoma was not caused by a service incident. The examiner observed that the Veteran had no documented skin condition when he was in active service. The Veteran was diagnosed with basal cell carcinoma in 1987, almost 40 years after he was discharged from service. The examiner explained that the etiology of basal cell carcinoma was sun exposure and that the Veteran had sun exposure not only for two years in service but also for a prolonged period of time after he got out of service. The Veteran was noted not to have documented chronic skin condition or treatment in service. In May 2010, the Veteran was afforded another VA examination. The examiner explained that there was no dermatologist available to review the case and that he was an internist and had been conducting compensation and pension examinations for the last five years. The Veteran reported first being diagnosed with basal cell carcinoma of the nose in 1987. The Veteran also had basal cell carcinoma on both cheeks and forehead. The biopsies revealed that he had basal cell carcinoma of the face. Upon examination, the examiner found two black spot areas in the middle of both cheeks and a reddish area on the upper left lip. Both of these lesions were tiny with no evidence of laceration or bleeding. There was no evidence of cancer. The Veteran also was noted to have had the excision of a mass on the left forehead area which was histofreezed. In addition, there was a cancer mark on the right forehead area where it had been excised. The examiner diagnosed the Veteran with basal cell carcinoma of the face and forehead. The VA examiner opined that the Veteran's basal cell carcinoma of the face and head was not caused or related to his active service. He noted that the service treatment records did show treatment for sunburns of the chest and abdomen. The VA examiner explained that the sunburn was an acute and self-limiting condition due to exposure to the sun. The examiner believed that the Veteran's sunburn had resolved. The Veteran was noted to have developed basal cell carcinoma to the face and forehead, but not on the sunburn areas including on the chest, upper abdomen and back that were noted in service. The VA examiner added that basal cell carcinoma usually occurred in older people with constant and prolonged exposure to the sun. Then, the examiner concluded that the basal cell carcinomas of the face and forehead were not related to the Veteran's sunburn area of the chest and upper abdomen and back. The Board first finds that the VA examiner's medical statements in this case serve to establish that the documented history of basal cell carcinoma of the forehead and face would be etiologically consistent with the Veteran's lay assertion of having experienced constant and prolonged exposure to sunlight while serving during World War II. Next, the service treatment records serve to confirm the harsh nature of the conditions to which the Veteran was exposed in connection with his wartime service. While the VA examiner opined that the Veteran's documented incident of sunburn in service was self-limiting in nature, he did not fully assess the extent of the damage to the skin of the forehead and face that would have been caused by unprotected exposure to sunlight for two years during his service in the Pacific in World War II or identify other sources of potential sunlight exposure that could be identified as the more likely cause of the basal cell carcinomas. To the extent that the Veteran is shown to have initially experienced serious sunlight exposure in service, the Board finds that any subsequent exposure after service, even if substantial, would only represent superimposed injury for the purpose of determining the cause of the claimed basal cell carcinomas. After a careful review of the entire record, the Board finds the evidence to be in relative equipoise in showing that the residuals of the basal cell carcinomas of the forehead and face as likely as not are the result of skin damage caused by excessive sunlight exposure that began during the Veteran's period of active service. The Veteran is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence (i.e. where the evidence supports the claim or is in relative equipoise, the appellant prevails). 38 U.S.C.A. 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, in resolving all reasonable doubt in favor of the Veteran, service connection for the claimed basal cell carcinoma is warranted. ORDER Service connection for the residuals of basal cell carcinomas of the forehead and face is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs