Citation Nr: 1310403 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 09-35 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for squamous cell cancer of the right hand, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. FINDINGS OF FACT 1. Service personnel records indicate the Veteran entered Vietnam; herbicide exposure is conceded. 2. The Veteran's squamous cell carcinoma did not have onset during service and is not otherwise related to service, to include exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for squamous cell carcinoma have not been met. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Rules and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 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, 1137; 38 C.F.R. §§ 3.307, 3.309. VA regulations also provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era (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. 38 C.F.R. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), including chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II or adult-onset diabetes mellitus), Hodgkin's disease, 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), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also 61 Fed. Reg. 57,586 -57,589 (1996); 72 Fed. Reg. 32,345-32,407 (Jun. 12, 2007). Although squamous cell carcinoma is not listed in 38 C.F.R. § 3.307(a)(6)(ii), the Board will still consider the Veteran's claim on a direct service connection basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). II. Factual Background and Analysis The Veteran claims that he should be granted service connection for squamous cell carcinoma due to exposure to herbicides during service. The Veteran's September 1968 enlistment report of medical examination and his November 1972 discharge report do not contain notations of a skin disorder; however, his service treatment records reveal treatment for warts on his right hand in July and August of 1971 and February, April, and July of 1972. Other than wart treatment, the Veteran's service treatment records do not include complaints of a skin disorder during service. In August 2008, the Veteran underwent a tissue examination by a private physician, Dr. N.L., for a skin lesion on his right hand. Dr. N.L. stated that the Veteran's lesion had early features of squamous cell carcinoma arising in a background of epidermal dysplasia within an irritated actinic keratosis. Dr. N.L. did not provide an opinion as to whether the Veteran's skin cancer is related to the Veteran's in-service exposure to Agent Orange or whether the Veteran's skin cancer is related to the warts he incurred during service. In a July 2012 letter, Dr. N.L. reported that in August 2008, the Veteran sought medical attention due to his concern about a skin lesion on his right hand which has been growing for two months and was itching and oozing fluid. The final pathological diagnosis for the lesion on his right hand was "insipient (early) superficially invasive squamous cell carcinoma, arising in irritated actinic keratosis. The neoplasia was not seen at the margins." There was no discussion of previous exposure to any chemicals at the office visit in August 2008. The first indication of squamous cell carcinoma is located in private treatment records dated August 2008, more than 35 years after separation from service, weighing against a claim of service connection based on continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). None of the records indicating diagnosis and treatment of squamous cell carcinoma indicate a relationship between the condition and service. In September 2012, the Board requested a Veterans Health Administration (VHA) expert opinion addressing the etiology of the squamous cell carcinoma. In a January 2013 opinion, the expert reviewed the Veteran's claims file, to include the service treatment records (STRs) and statements submitted by the Veteran. The physician determined that the Veteran's squamous cell carcinoma was not related to his in-service treatment of wards on his right hand. The physician noted that the treatment records indicate that he was treated from July 1972 to July 1972 for warts on his right hand. It is very common that repeat treatment is needed to eradicate warts, a common skin problem caused by the Human Papilloma Virus. On his exit examination in November 1972, the physical examination report does not mention warts. A pathology report dated in August 2008 from an outside doctor revealed a superficially invasive squamous cell carcinoma (SCC), arising in an irritated actinic keratosis, from the right hand. An actinic keratosis is considered a precancerous lesion caused by sun damage. If the SCC was arising from a persistent wart, the pathology report would have noted these changes. Instead, it states that he SCC is arising from sun damage (i.e., actinic keratosis). Sun damage is the most common cause of SCC of the skin. Warts rarely transform into SCC. For these reasons, the physician opined that the Veteran's SCC is not related to his in-service treatment of warts. In addition to the medical evidence, the Board has considered the Veteran's lay statements and testimony. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ('a legal concept determining whether testimony may be heard and considered') and credibility ('a factual determination going to the probative value of the evidence to be made after the evidence has been admitted'). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, 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 Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). Notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In this case, the Veteran argues that his squamous cell carcinoma is the result of Agent Orange or herbicide exposure during service. Unfortunately, while the Veteran is competent to report his skin symptoms, such as the onset and progression of a lesion, he is not competent to provide an opinion regarding the etiology of the disability. Cancers are not the types of disabilities that are capable of lay diagnosis (as opposed to biopsies or other laboratory testing) and have readily identifiable etiologies, thus laypersons are incapable of providing competent and credible opinions on the matter. See Jandreau v. Nicholson, 492 F.3d at 1377. Such competent evidence has been provided by the VHA expert and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. Simply, the evidence in this case weighs against a finding of service connection for squamous cell carcinoma. STRs show no indication of cancer during service and the first indication of a cancerous lesion was noted in August 2008, approximately 35 years after separation from service. None of the medical records indicate a relationship between the disability and service or in-service treatment for warts. More importantly, the VHA expert examiner provided a compelling opinion supported by her review of the record as to why it is less likely as not that the disability is in any way related to service. Overall, the preponderance of the evidence is against the Veteran's claim for service connection for squamous cell carcinoma, and this claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). III. The Duty to Notify and Assist 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 medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in November 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of 'relevant' records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be 'necessary' to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained private treatment records and an opinion from a VHA examiner regarding the etiology of the disability. The Veteran submitted private statements and was offered an opportunity to set forth his contentions during a Board hearing, which he declined. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for squamous cell cancer of the right hand, to include as secondary to herbicide exposure, is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs