Citation Nr: 1237105	
Decision Date: 10/25/12    Archive Date: 11/09/12

DOCKET NO.  06-00 687	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for skin cancer, variously described as Bowen's disease, basal cell carcinoma and seborrheic keratosis, claimed as due to in-service sun exposure and exposure to Agent Orange.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel






INTRODUCTION

The Veteran served on active duty from December 1966 to April 1972.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

This matter was previously before the Board in December 2009 and December 2011, at which time it was remanded for further development. It is now returned to the Board.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDINGS OF FACT

1. The Veteran had active military service in the Republic of Vietnam during the Vietnam era; therefore, he is presumed to have been exposed to herbicides, including Agent Orange.

2. There is no competent evidence of record that the Veteran's skin cancer, variously described as Bowen's disease, basal cell carcinoma and seborrheic keratosis had its onset during active military service or within one year of his discharge from service, or that it is etiologically related to service, to include his presumed herbicide exposure and claimed excessive sunlight exposure. 


CONCLUSION OF LAW

The criteria for service connection for skin cancer, variously described as Bowen's disease, basal cell carcinoma and seborrheic keratosis to include as due to herbicide and sun exposure, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that service connection for skin cancer is warranted and alleges it was incurred as a result of exposure to sunlight and Agent Orange during his active service in Vietnam. 

The Board will discuss the relevant law it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a).  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(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.  

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).   

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).  



Duty to Notify and Assist

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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).

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 or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1).

In January 2004 and January 2005 VCAA letters, VA explained the evidence necessary to substantiate the Veteran's claim for service connection for skin cancer. These letters also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

In addition, the January 2004 VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

Although VCAA notice was not completed prior to the initial adjudication, the claim has been readjudicated thereafter. Any defect in timing of the notice is no more than harmless, nonprejudicial error. Id.

With regard to the duty to assist, the Veteran's service treatment records, service personnel records, VA medical records, and identified private medical records have been obtained. The Veteran was scheduled for multiple VA examinations.

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

In December 2009, the Board remanded the appeal for additional development. The remand required the RO/AMC to afford the Veteran a VA examination and to obtain all available private and VA treatment records.

The RO/AMC scheduled the Veteran for a VA examination for May 2011. Contrary to the remand directives, the examination report contained no nexus opinion as to whether the Veteran's skin disability was caused by in-service sun exposure or due to exposure to Agent Orange. As a result, the RO obtained an addendum in August 2011. The reviewing physician provided an opinion that the Veteran's current skin disability was not related to presumed in-service Agent Orange exposure, but she did not provide an opinion as to whether the Veteran's current skin disorders were related to in-service sun exposure.

In December 2011, the Board remanded the claim to obtain a VA examination that included an opinion as to whether the Veteran's current skin disability could be attributable in whole or in part to in-service sun exposure. The examiner was requested to obtain a detailed history of the Veteran's sun exposure due to inconsistent medical histories provided by the Veteran.

In addition, the Board remanded the issue because the September 2011 supplemental statement of the case (SSOC) did not include consideration of whether the Veteran has a current skin disability that is due in whole or in part to the Veteran's in-service sun exposure. See 38 C.F.R. §  19.31(b)(2).

All of the actions sought by the Board through its prior development directives have been completed. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). A SSOC was issued in September 2012, which confirmed and continued the previous denial. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Law and Regulation

Generally, service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Direct service connection requires competent evidence showing: (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 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 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). Also, certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 

A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).

The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). 

The following diseases are associated with herbicide exposure for purposes of the presumption: chloracne or other acneform disease consistent with chloracne, Type II diabetes, Hodgkin's disease, chronic lymphocytic leukemia, 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 certain soft- tissue sarcomas. A presumption of service connection based on Agent Orange exposure, however, is specifically not warranted for various disabilities, to include melanoma and non-melanoma skin cancer (basal cell and squamous cell). 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Chloracne or other acneform disease consistent with chloracne must manifest to a degree of ten percent or more within one year after the last date of exposure to an herbicide agent. 38 C.F.R. § 3.307 (a) (6).

Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).




Analysis

The evidence of record reveals a history of skin cancers variously diagnosed as basal cell carcinoma, seborrheic keratosis, sebaceous hyperplasia, lichenoid actinic keratosis, and Bowen's disease.

Service personnel records, including the Veteran's DD Form 214, confirm he served in Vietnam during the Vietnam era, so it is presumed he was exposed to an herbicide agent, such as Agent Orange, while there. 38 C.F.R. § 3.307(a)(6), 3.313(a). However, the Veteran's diagnosed skin cancers are not on the list of diseases associated with herbicide exposure for purposes of the presumption.

The Veteran may still establish service connection for skin cancer with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999).  

The Veteran's service treatment records are silent regarding any skin conditions, including symptoms, diagnoses, or treatment for any acute or chronic disorders, such as skin cancers, skin burns or inflammation from acute exposure to herbicides or sunlight. His service entrance and exit examinations indicate normal skin examinations.

After reviewing the claims file, an August 2011 VA physician found that the Veteran's current skin disability was not related to in-service exposure to Agent Orange. The examiner explained that there is no direct evidence or studies linking Agent Orange exposure to the development of basal cell or squamous cell carcinoma. The examiner noted the Veteran's service treatment records provided no evidence to support complaints of skin symptoms during service or one year post-service. Specifically, the examiner noted that the Veteran did not complain of a skin condition to a dermatologist until more than 30 years after service.

The Veteran also contends that his skin cancer is a result of exposure to sunlight during his air and ground assignments for active service. But this assertion is of no probative value as there is no evidence linking the Veteran's skin cancer to his military service, other that the Veteran's own assertions that the two are related. While he is competent to relate events in service and after service, and to describe the extent of his current symptomatology, there is no evidence that he possesses the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as medical diagnosis or medical causation. Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Apart from his lack of medical competency, his allegation has been investigated by a qualified medical professional as mandated by the third prong of Jandreau, supra., and found meritless. 

The more probative evidence addressing the likely etiology of the Veteran's skin cancer is the July 2012 examination report. Upon examination of the Veteran and review of his claims file, the examiner opined that the Veteran's skin disabilities are less likely than not caused by or a result of the Veteran's military service. She indicated that the Veteran's current skin disabilities can be caused by solar exposure over time, in part or in whole. The examiner addressed each of the Veteran's diagnosed skin cancers. She noted that actinic keratosis can be caused by solar damage and the Veteran reported that he spent frequent time at the beach post-service. The examiner noted that seborrheic keratosis is a benign skin condition that is seen in older people as a skin condition due to aging. The examiner noted that Bowen's disease and basal cell carcinoma can be caused by solar exposure, but he was not seen or treated for this until over 30 years after service and has not had any recurrence of basal cell carcinoma and squamous cell carcinoma to date. 

The preponderance of the evidence is against the finding of a nexus between skin cancer and any in-service event. The Veteran has not reported a history of continuity of symptomatology from active service forward and he reported that he did not require treatment for skin disabilities until over 30 years after service discharge. 

There is no evidence of skin cancer during service or within the initial post-service year establishing a positive relationship between the Veteran's diagnosed skin cancers to military service, to include his presumed herbicide exposure and claimed excessive sunlight exposure, service connection on a direct basis is not warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309.

Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); see Gilbert, 1 Vet. App. at 53.


ORDER

Service-connected for skin cancer, claimed as due to in-service sun exposure and exposure to Agent Orange, is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs