Citation Nr: 1308621 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-44 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for skin cancer, to include as secondary to service-connected postoperative recurring moles with scars. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from October 1974 to February 1977, May 1980 to May 1984, and November 1984 to July 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Portland, Oregon. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are not relevant to the issue on appeal. FINDING OF FACT The Veteran does not currently have skin cancer. CONCLUSION OF LAW The Veteran does not have skin cancer that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letter dated in June 2009 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information he needed to provide, and what information and evidence VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. The VCAA also requires that VA make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. As will be discussed below, the claim is being denied on the basis that no competent medical evidence has been submitted that shows that the Veteran currently has skin cancer. In this circumstance, there is no duty on the part of VA to provide a medical examination, because as in Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003), the Veteran has been advised of the need to submit competent medical evidence indicating that he has the disorder in question, and further substantiating evidence suggestive of a linkage between his active service and the current disorder, if shown. The Veteran has not done so, and no evidence thus supportive has otherwise been obtained. Here, as in Wells, the record in its whole, after due notification, advisement, and assistance to the Veteran under the VCAA, does not contain competent evidence to suggest that the Veteran has skin cancer that is related to his active service. Given these matters of record, there is no competent evidence that "the disability or symptoms may be associated with the claimant's active . . . service." 38 U.S.C.A § 5103A(d); cf. Charles v. Principi, 16 Vet. App. 370 (2002). Under such circumstances, there is no duty to provide an examination or to obtain a medical opinion. Id. In sum, the Board finds that the duty-to-assist and duty-to-notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service connection Service connection means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, including tumors, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). The Veteran contends that he has skin cancer that is related to his period of active service. He also asserts that such may be secondary to his service-connected postoperative recurring moles with scars. The Veteran's service treatment records reveal that he had recurring moles that were removed on several occasions during his period of active service. The moles noted in service were said to be located on the scalp, neck, chest and shoulder. Diagnostic testing indicated that all of the lesions that were removed were benign. There is no medical evidence of record that the Veteran was diagnosed with skin cancer during his period of active service. (Service connection has been established for postoperative recurring moles with scars.) Subsequent to service, VA outpatient treatment records dated from June 2004 through September 2012 show that the Veteran has undergone periodic dermatological evaluations during which various moles were excised and tested for malignancy. A VA outpatient treatment record dated in January 2006 shows a mole was excised from the Veteran's back and was confirmed to be melanoma in-situ with clear margins. Thereafter, moles smaller in size were removed from the back that were not cancerous and a lesion was removed from the Veteran's thigh in 2008 also with benign biopsy results. A VA dermatology outpatient note dated in June 2009 shows that the Veteran had a history of melanoma in-situ on his lower back in January 2006 and non-melanoma type of skin cancer removed from the left "sup helix" many years ago outside of VA. The Veteran had no new concerning lesions. A full body skin examination revealed a well-healed scar on the mid back; left "sup helix" with biopsy scar and no residual lesion; numerous tan/grey stuck-on appearing, waxy and few pedunculated papules/plaques scattered over the scalp, trunk, and extremities; numerous brown macules scattered over the face, trunk, and upper extremities; and lower extremity nail dystrophy with yellow cracked, crumbling nails on all toes. The assessment was melanoma in-situ status post resection on the low back, unknown type skin cancer on the left ear. A VA foot examination report dated in August 2009 shows that the Veteran was said to have been diagnosed with melanoma in-situ; a lesion on his back that was found incidentally through routine skin survey. This was excised completely with clean margins and required no further treatment beyond that. Further dermatological evaluation was said to have found no suspicious lesions. A history of benign mole with well-healed scar formations not causing any functional disabilities was also noted. The examiner concluded that the Veteran had melanoma in-situ with complete resolution in 2006, and had no further treatments or excisions for this issue. There was no history of treatment for melanoma in service. The examiner could not make any connection between this and discharge in 1998. After a review of the evidence of record, the Board finds that entitlement to service connection for skin cancer is not warranted. The Veteran's last period of active service concluded in 1998. He filed his claim for service connection in May 2009. The sole incidence of melanoma in-situ on the back was in January 2006. There is no evidence of any recurrence since that time, to specifically include any time over the course of this appeal. As the competent medical evidence of record does not show a current diagnosis of skin cancer, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no competent evidence of record of current skin cancer (including melanoma), the Board must conclude that the preponderance of the evidence is against the Veteran's claim. As there is no clinical diagnosis or medical evidence of skin cancer, there are no possible means of attributing a non-existent condition to the Veteran's active service or to the service-connected postoperative recurring moles with scars. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (Determination of service connection requires a finding of the existence of a current disability and of a relationship between that disability and an injury or disease incurred in service.). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Veteran is competent to provide evidence of events capable of observation. See Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (competency must be distinguished from weight and credibility, which are factual determinations going to the ultimate probative value of the evidence). However, the medical record outweighs the Veteran's personal belief, no matter how sincere, that he has current skin cancer. Thus, absent proof he has this claimed disability, service connection cannot be granted. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer, 3 Vet. App. at 225. In light of the absence of any competent medical evidence of record to suggest that the Veteran currently has skin cancer, for the Board to conclude that the Veteran has such a disability would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2012); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Accordingly, the Veteran's claim of entitlement to service connection for skin cancer is denied. 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, as here, the preponderance of the evidence is against the claim of entitlement to service connection for skin cancer, to include as secondary to service-connected postoperative recurring moles with scars. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 49. ORDER Service connection for skin cancer, to include as secondary to service-connected postoperative recurring moles with scars, is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs