Citation Nr: 1307199	
Decision Date: 03/04/13    Archive Date: 03/11/13

DOCKET NO.  10-10 888	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for basal cell carcinoma left side of back and right neck. 


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

H.J. Baucom, Associate Counsel






INTRODUCTION

The Veteran had active service from December 1966 to March 1969.

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Roanoke, Virginia. 
 
The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.  
 

FINDING OF FACT

The preponderance of the evidence is against a finding that the basal cell carcinoma manifested in service or is otherwise related to any disease or injury in service. 


CONCLUSION OF LAW

The criteria for service connection for basal cell carcinoma left side of back and right neck are not met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

VA has a 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

A November 2008 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  

The Board has reviewed the Veteran's "Virtual VA" file. 

The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  

The Veteran was not examined by VA in conjunction with the claim of service connection for basal cell carcinoma; however, no such examination is necessary in this case because the evidence of record does not indicate that the disability or symptoms of the disability "may be" associated with service.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  
 

Analysis

The Veteran was diagnosed with basal cell carcinoma in 2000.  The Veteran contends that his basal cell carcinoma is related to his exposure to Agent Orange in service.

If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e).  Section 3.307(a)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.   Section 3.307(a)(6)(iii) also provides that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam 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.

Service personnel records establish that the Veteran was present in the Republic of Vietnam from March 1968 to March 1969, and he is presumed to have been exposed to Agent Orange.  38 C.F.R. § 3.307(a)(6). 

If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset 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 soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).  The Veteran's diagnosed condition, basal cell carcinoma, is not listed as a presumptive condition under 38 C.F.R. § 3.309(e) and the presumption of service connection is not for application.

There is no competent evidence linking basal cell carcinoma to herbicide exposure.  The Veteran has expressed his belief that there is a relationship, but as a layperson, he is not competent to render an opinion on causation.  He lacks the specialized knowledge and training required to opine on the causes of basal cell carcinoma.  This is not a simple cause and effect relationship, where the Veteran may simply observe the development through his five senses.  Layno v. Brown, 6 Vet. App. 465 (1994).  As the Veteran is not competent to provide such an opinion, his belief alone is insufficient to meet the very low threshold requirement for a VA examination and medical opinion.  McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

Notwithstanding, service connection may otherwise be established with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  The United States Court of Appeals for Veterans Claims (Court) has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure.  McCartt v. West, 12 Vet. App. 164, 167 (1999). 

There is no evidence or allegation that basal cell carcinoma developed during service or is related in any way to active duty.  In a December 2008 statement the Veteran reported that his basal cells had been a problem for the last 18-20 years.  By the Veteran's own history he did not have any skin conditions or manifestations of basal cell carcinoma until 1988 at the earliest, 19 years post service. 

There is simply no competent evidence relating basal cell carcinoma to service.  The preponderance of the evidence is against the claim; there is no doubt to be resolved.  Service connection for basal cell carcinoma left side of back and right neck is not warranted.



ORDER

Service connection for basal cell carcinoma left side of back and right neck is denied.



____________________________________________
MARK W. GREENSTREET 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs