Citation Nr: 1301109 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 10-29 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a skin disorder of the head, the back, and the trunk to include basal cell carcinoma residuals, squamous cell carcinoma residuals, actinic keratoses, and seborrheic keratoses. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from March 1951 to March 1955; from June 1955 to June 1959; and from August 1959 to August 1963. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Denver, Colorado, Regional Office (RO) which denied service connection for bilateral hearing loss, bilateral tinnitus, and a skin disorder to include skin cancer of the head and the back. In March 2012, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript was prepared and incorporated into the record. In May 2012, the Board advanced the Veteran's appeal on the docket on its own motion. In May 2012, the Board granted service connection for both bilateral hearing loss and tinnitus and remanded the issue of service connection for squamous cell carcinoma and actinic and seborrheic keratoses of the head and the back to the RO for additional action. The Board has reviewed both the Veteran's physical claims file and his "Virtual VA" file so as to insure a total review of the evidence. The Board has reframed the issue of service connection for squamous cell carcinoma and actinic and seborrheic keratoses of the head and the back as entitlement to service connection for a skin disorder of the head, the back, and the trunk to include basal cell carcinoma residuals, squamous cell carcinoma residuals, actinic keratoses, and seborrheic keratoses in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). A December 2009 written statement from the accredited representative appears to raise the issue of clear and unmistakable error in the November 2009 rating decision denying service connection for a chronic skin disorder. Previous determinations which are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a) (2012). As the November 2009 rating decision is the subject of the instant appeal, it is not final. In the absence of a final decision, the Board finds that a motion for CUE is premature. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran had extensive and unprotected in-service sun exposure while serving in the Philippines and Saudi Arabia. 2. Basal cell carcinoma residuals, squamous cell carcinoma residuals, actinic keratoses, and seborrheic keratoses of the head, the back, and the trunk originated during active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, basal cell carcinoma residuals, squamous cell carcinoma residuals, actinic keratoses, and seborrheic keratoses of the head, the back, and the trunk were incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced the Department of Veterans Affairs' (VA) duties to notify and assist claimants in substantiating their claims 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, 3.326(a) (2012). In this decision, the Board grants service connection for basal cell carcinoma residuals, squamous cell carcinoma residuals, actinic keratoses, and seborrheic keratoses of the head, the back, and the trunk; therefore, no further discussion of VA's duties to notify and to assist is necessary. Service Connection for a Skin Disorder The Veteran contends that he sustained multiple skin cancers and keratoses of the head, the back, and the trunk as the result of his extensive and unprotected sun exposure while serving in both the Philippines and Saudi Arabia. He advances that P. Weber, M.D., his treating physician, has concluded that his chronic skin cancers and other skin damage are related to his inservice sun exposure. Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and a malignant tumor becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2012). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, the Veteran contends that service connection is warranted for a skin disorder of the head, the back, and the trunk, to include basal cell carcinoma residuals, squamous cell carcinoma residuals, actinic keratoses, and seborrheic keratoses. In writing and at a Board personal hearing, the Veteran has asserted that he was exposed to excessive amounts of sunlight during service while stationed in the Philippines and in Saudi Arabia, and he believes that his current skin disorders were caused by this in-service sun exposure. The Veteran has reported that he had been provided no sunscreen or sun protection of any kind while performing physical training in the sun, and that he had been sunburned many times because of the intense sun exposure. Relevant service treatment documentation is not of record. An August 2009 statement from the National Personnel Record Center (NPRC) states that the Veteran's service treatment records were unavailable and presumed to have been destroyed in the 1973 NPRC fire. The Veteran's service personnel records are existent and confirm that he was stationed in both the Philippines and Saudi Arabia. The relevant evidence in this case includes an October 1982 private treatment record conveys that the Veteran was diagnosed with basal cell carcinoma of the face. Clinical documentation from Dr. Weber dated between July 2002 and June 2009 reflects that the Veteran was treated for multiple skin lesions and underwent excision of several basal cell carcinomas and squamous cell carcinomas of the head, the back, and the trunk. A July 2003 treatment record notes that the Veteran had a history of a left temple basal cell carcinoma and excision thereof. Assessments of nasal lesions of an unspecified nature and multiple seborrheic keratoses were advanced. A March 2004 treatment record states that assessments of benign lesions of the face and multiple large seborrheic keratoses of the back were advanced. Treatment records dated in February 2005 indicate that the Veteran was diagnosed with a left eyelid lesion and multiple seborrheic keratoses. A January 2006 treatment entry states that the Veteran was diagnosed with a basal cell carcinoma of the left chest. The Veteran underwent excision of the lesion. An August 2008 treatment record states that the Veteran was diagnosed with multiple actinic and seborrheic keratoses of the scalp and the trunk and a left eyebrow lesion. In his June 2009 claim for service connection, the Veteran asserted that: he had been stationed in the Philippines and Saudi Arabia during active service; "spent many hours exposed to the hot sun" without sunscreen protection; and was subsequently diagnosed with skin cancer on his head and back. In support of his claim, the Veteran submitted photocopies of photographs showing him in the sun in a bathing suit. A July 2009 written statement from Dr. Weber reports that the Veteran was a "long term patient in our medical clinic" and had been treated for "sun damaged skin including actinic keratoses and basal cell carcinomas." Dr. Weber also indicated that some medical records were reviewed and that he interviewed the Veteran. Based on the Veteran's history of having served tours of duty in the Philippines and in Saudi Arabia, and concluding that the Veteran would likely have been repeatedly exposed to intense sunlight, Dr. Weber offered the opinion that it is more likely than not that the intense sun exposure during service contributed to the Veteran's later development of sun damaged skin and basal cell cancers. An October 2009 written statement from the Veteran clarifies that he had spent two years in the Philippines and performed "physical training most afternoons in the outdoor pool in the sun." An undated Internet article from the Mayo Clinic notes that the risk of developing skin cancers was possibly increased by having fair skin; excessive sun exposure including that incurred while living in a sunny climate; a history of sunburns; and precancerous lesions including actinic keratoses. A December 2009 written statement from the Veteran notes that he had been provided "no sunscreen or sun protection of any kind" while performing physical training almost every afternoon in the sun. He recalled that he had been "sunburned many times because of this intense sun exposure." Clinical documentation dated in August 2011 from P. Upadhyaya, M.D., notes that the Veteran was diagnosed with a right superior temple squamous cell carcinoma and underwent excision of the lesion. Clinical documentation dated in March 2012 from S. Tan, M.D., states that that the Veteran was diagnosed with a right medial alar crease squamous cell carcinoma and underwent excision of the lesion. At the March 2012 Board videoconference hearing before the undersigned Veterans Law Judge, the Veteran reiterated that he had extensive and unprotected inservice sun exposure; had been sunburned during service; and that he subsequently developed skin cancer. At a June 2012 VA skin diseases examination for compensation purposes, the Veteran presented a history of intense inservice sun exposure while in the Philippines and Saudi Arabia. He denied significant post-service sun exposure. The resulting diagnosis was basal cell carcinoma and squamous cell carcinoma excision residuals, actinic keratoses, and seborrheic keratoses. The examiner offered the opinion that it was "less likely as not that the Veteran's current skin condition to include previous removal basal cell/squamous cell carcinoma of the skin, actinic keratosis, and seborrheic keratosis was caused by the military service." The examiner reasoned that there was no evidence in the file of any skin problems in the military service; there was no evidence of significant sunburns in service; there was a lack of information regarding sun exposure after service, wit the first report of the first skin cancer being at least 20 years after military service; and that his opinion was based on medical literature review regarding precancerous lesions to include actinic keratoses and seborrheic keratoses. The examiner reasoned that actinic keratoses (otherwise known as solar keratoses) developed into squamous cell carcinoma; that the main cause for solar keratoses is ultraviolet sunlight (a lot of time in the sun, early severe sunburns, and becoming older); and that seborrheic keratoses causes are basically unknown, but they are benign skin tumors and run in some families, so appear to be genetic. With regard to the accuracy of the facts relied upon by the VA examiner, the examiner did not note that the Veteran's service treatment records had been lost in the NPRC fire. After a review of all the evidence, the Board finds that, on the question of whether the Veteran was exposed to intense sunlight without protection while serving in the Philippines and Saudi Arabia, the Veteran is competent to state that he had such exposure and was sunburned as such facts were readily observable by a lay person. In this case, where the Veteran's service treatment documentation is not of record and was apparently destroyed through no fault of his own, there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Having considered the Veteran's reports of sun exposure and sunburn during service, the Board finds that these statements are not implausible or inconsistent with the other evidence of record. The Veteran has also submitted copies of photographs showing him in the sun during active service. Notwithstanding the absence of documentation of sun exposure during service other than location of duty station, and an absence of documentation of sunburn during service, resolving reasonable doubt in the Veteran's favor on this question, the Board finds that the Veteran was exposed to intensive sunlight and was sunburned during service. On the question of current disability, the evidence shows that the Veteran has been diagnosed with basal cell carcinoma residuals, squamous cell carcinoma residuals, actinic keratoses, and seborrheic keratoses of the head, the back, and the trunk. While Dr. Weber, the Veteran's treating physician, attributed the Veteran's skin cancers and keratoses to his in-service sun exposure, the June 2012 VA skin disease examination report appears to negate such a relationship. However, the VA examination report is lacking in clarity to the extent that it renders unclear the examiner's specific conclusions and reasons supporting the opinion. Further, the VA physician did not consider the inadvertant destruction of the Veteran's service treatment records, so advanced an apparently negative nexus opinion founded upon the absence of such documentation. This is a legally invalid basis to support a nexus opinion as it is inconsistent with the application of reasonable doubt in considering the lay reports of sun exposure and sunburn during service. See Cuevas, 3 Vet. App. at 548; O'Hare, 1 Vet. App. at 367. Additionally, the examiner's apparent conclusion that, without documentation of sun exposure or sunburn during service, such sun exposure did not occur, is inconsistent with the Board's findings of fact in this case. Consequently, in forming the nexus opinion, the VA examiner relied upon the inaccurate factual premise that the Veteran had not in fact been exposed to excessive sun or been sunburned in service. Such an opinion based on an inaccurate factual history is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Given such deficiencies, the Board finds that the June 2012 VA examination report and any opinion contained therein to be of essentially no probative value. On the question of whether the basal cell carcinoma residuals, squamous cell carcinoma residuals, actinic keratoses, and seborrheic keratoses of the head, the back, and the trunk are related to the in-service sun exposure, Dr. Weber, the Veteran's treating physician, has opined that the disabilities are related to such sun exposure. In the absence of competent evidence to the contrary, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for basal cell carcinoma residuals, squamous cell carcinoma residuals, actinic keratoses, and seborrheic keratoses of the head, the back, and the trunk is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for basal cell carcinoma residuals, squamous cell carcinoma residuals, actinic keratoses, and seborrheic keratoses of the head, the back, and the trunk is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs