Citation Nr: 1306782 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 07-36 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for skin cancer. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his son. ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1943 to November 1945. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which, in relevant part, denied the benefit sought on appeal. The Veteran and his son, R. D., JR., testified at a hearing before the undersigned Veterans Law Judge in September 2011. The Veteran additionally testified at a hearing before an RO Decision Review Officer (DRO) in May 2011. Transcripts of those hearings are of record. In October 2011, the Board remanded the Veteran's claim on appeal for further development. The Board additionally granted his claim for bilateral hearing loss in that decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's current skin cancer disability is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for skin cancer have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for skin cancer. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), is necessary. I. Governing Law and Regulations 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 (West 2002); 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In making all determinations, the Board must fully consider the lay assertions of record. Davidson, 581 F.3d 1313. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). The United States Court of Appeal for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson, 2 Vet. App. at 618. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 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. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Analysis The Veteran contends that he developed skin cancer as a result of excessive sun exposure while serving on the deck of a destroyer ship during his service in the United States Navy. Considering first the current disability requirement for service connection, the Veteran was afforded a VA skin examination in December 2011. The diagnosis was chronic actinic damage, actinic keratoses, and a history of nonmelanoma skin cancers, including basal cell cancer, squamous cell cancer, and scarring from treatment of the nonmelanoma skin cancers. A review of his recent private dermatology treatment records also reveals ongoing treatment for actinic keratoses and post-neck squamous cell cancer. Based on this evidence, the current disability requirement for service connection is clearly satisfied. See Davidson, supra. With respect to the second required element for service connection, in-service incurrence of a disease or injury, a review of the Veteran's service treatment records (STRs) reveals no indication that he complained of or was treated for any cancer related skin conditions during his service. The Veteran contends, however, that his post-service skin cancer did not develop during his service but that it developed following his separation from service as a result of excessive sun exposure while he served aboard a destroyer during his service. The Veteran specifically indicated during hearing testimony that his general quarters were on the ship's helm. His service personnel records (SPRs) indicate that he served as a quartermaster, second class, requiring him to serve on the deck and to serve as helmsman. His SPRs further note his service aboard the U.S.S. Richard P. Leary, a Fletcher-class destroyer, from February 1944 through at least August 1945, in various regions of the South Pacific. The Veteran further indicated that he frequently spent his time on deck with his shirt off, as his service included tours in the warm climates of the South Pacific. He additionally submitted pictures from his time in service showing him on the deck of his ship with his shirt off. The Board finds that the Veteran's testimony with respect to his frequently completing his duties aboard the deck of his assigned destroyer with his shirt off is credible. Moreover, it is reasonable to believe that the Veteran was exposed to excessive sunlight while serving aboard his ship during his service in the South Pacific under such conditions. Based on the foregoing evidence, the Board will afford the Veteran the full benefit of the doubt and concede his exposure to excessive sunlight during his service. Accordingly, the Board finds that the second required element for service connection is satisfied. See Davidson, supra. The Board is now left to consider the final required element for service connection, a nexus between the Veteran's current skin cancer disability and his in-service exposure to excessive sunlight. Here, the Board notes that the earliest evidence of record of treatment for skin cancer is found in a December 1992 dermatology treatment report where the Veteran was found to have basal cell carcinoma. Continuing treatment records show frequent treatment for squamous cell carcinoma and actinic keratoses. The Veteran has consistently testified that he began receiving treatment for skin cancer related problems in the 1950's. He reported that earlier treatment records were not available, however, because the first dermatologist he saw had been long deceased. In September 2011, a private dermatologist, B. H. D., M.D., provided a letter indicating that he had been treating the Veteran since 1985 for numerous precancerous and cancerous lesions. Dr. D. indicated that biopsies confirmed actinic keratoses, basal cell carcinoma, and squamous cell carcinomas. He noted that the majority of the Veteran's lesions occurred on sun-exposed areas of his face, back, and arms. He noted that it is a well-known fact that precancers and cancers of the skin are related to prior sunburns. As the Veteran reported that the majority of his sun exposure during his earlier years occurred during his military service in the South Pacific, Dr. D. provided the opinion that the sunburns the Veteran received during that stage of his life have more than likely been a major contributory factor to his skin cancers that developed years later. The Veteran was afforded his aforementioned VA skin examination in December 2011. After examining the Veteran, the examiner opined that each of his diagnosed skin cancers and residual scarring from treatment for his nonmelanoma skin cancer was at least as likely as not related to his service, specifically his in-service extreme sun exposure. The examiner rationalized this opinion by noting that such extreme sun exposure, especially causing blistering sunburns, was a significant and well-known risk factor for subsequent development of actinic damage, actinic keratoses, and nonmelanoma skin cancer. During a subsequent August 2012 VA examination, the VA examiner more specifically noted the size of the Veteran's residual scars from treatment for his skin cancers and noted his continuing diagnoses of widespread actinic damage and a history of multiple nonmelanoma skin cancers. The examiner did not provide additional comment as to his earlier medical opinion. The Board finds that both the Veteran's private dermatologist and the VA skin examiner were fully-informed of the Veteran's history of treatment for skin cancers and his history of sun exposure, and that they provided fully-articulated and well-reasoned opinions based on a thorough knowledge of the Veteran's history and on current examination. Therefore, the Board finds that these opinions are adequate for etiologically relating the Veteran's skin cancer disabilities to his history of excessive sunlight exposure during his service, and thus satisfy the final required element for service connection. See Davidson, supra. Based on the foregoing, the Board finds that all elements for service connection for skin cancer have been met. The Veteran currently suffers from skin cancer related disability and residual effects of such disability and adequate medical opinions of record have etiologically linked his skin cancer to his excessive, in-service sunlight exposure. See 38 C.F.R. § 3.303(d) (2012). Accordingly, all doubt with respect to this claim is resolved in favor of the Veteran and his claim for service connection for skin cancer is granted. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for skin cancer is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs