Citation Nr: 1311784 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 08-29 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for skin cancer. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1969. He had service in Vietnam. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision by the Wichita, Kansas Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for skin cancer. In November 2011, the Board remanded the case to the RO via the VA Appeals Management Center (AMC), for the development of additional evidence. The Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). In an August 2012 rating decision, the RO granted service connection for tinea. The skin disorder that is the subject of the ongoing appeal for service connection is skin cancer. The Board has reviewed both the Veteran's physical claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDING OF FACT The Veteran's skin cancer was not diagnosed until many years after service and has not been medically linked to any events during his service, including his presumed exposure to herbicides during his Vietnam service. CONCLUSION OF LAW The Veteran's skin cancer was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided the Veteran with VCAA notice in a December 2007 letter, issued before the March 2008 rating decision in which the RO denied service connection for skin cancer. That letter addressed the information and evidence necessary to substantiate claims for service connection and increased ratings, and informed the Veteran how VA assigns effective dates. The letter also addressed who was to provide the evidence. The claims file contains the Veteran's service medical records, post-service medical records, statements from the Veteran, and reports of VA medical examinations. The Veteran has had a VA medical examination adequate for addressing his claim for service connection for skin cancer. Following the November 2011 Board remand, the AMC or RO obtained medical records the Veteran identified and scheduled the Veteran for a VA dermatology examination. The Board is satisfied that there has been substantial compliance with the remand directives, and that additional remand is not needed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument and reporting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claim on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection for Skin Cancer The Veteran contends that skin cancer diagnosed after service is related to a skin disorder he had during service or to herbicide exposure during service. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Under certain circumstances, service connection for specific diseases may be presumed if a veteran was exposed during service to certain herbicides, including Agent Orange. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309(e) (2012). If a veteran was exposed to Agent Orange or another herbicide agent, service connection for any of the conditions listed under 38 C.F.R. § 3.309(e) will be presumed if the condition becomes manifest to a degree of 10 percent disabling or more. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who served on active duty in the Republic of Vietnam during the period from January 9, 1962 to 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 service. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran served in Vietnam in the late 1960s. He is presumed to have been exposed to an herbicide agent during that service. VA has presumed service connection for the Veteran's diabetes based on his herbicide exposure during service. Skin cancer, however, is not subject to a presumption of service connection based on herbicide exposure. It is not included in the conditions listed at 38 C.F.R. § 3.309(e) for which service connection may be presumed. Service connection thus may not be presumed for the Veteran's skin cancer based on his herbicide exposure. The establishment of service connection for his skin cancer requires direct evidence that it developed as a result of herbicide exposure during service, direct evidence that it was incurred or aggravated in service, or evidence that it is secondary to a service-connected disability. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran's service medical records show treatment in 1968 for skin rashes. Treating clinicians diagnosed tinea corporis and tinea cruris. No skin disorders were noted on medical examination in September 1969 for separation from service. The Veteran's claims file contains some records of post-service medical treatment he received from 1976 forward. Private primary care notes from December 1995 reflect that the Veteran had a rash all over his body, diagnosed as contact dermatitis. In January 1997, he had an acneform rash on his forehead. In May 1998, he had peeling of the skin of his hands, diagnosed as contact dermatitis. In September 1999, he had statis dermatitis and cellulitis of the right lower leg. In January 2002, he was noted to have scabs on his scalp. In July 2006, he had sores on his ankles. The treating clinician found that the lesions were contact type dermatitis and were not diabetic sores. In February and August 2007, the treating clinician noted that a few skin lesions on the Veteran's arms should be checked for skin cancer. In November 2007, the Veteran filed a claim for service connection for skin cancer. He stated that he recently had treatment to remove lesions. In his May 2008 notice of disagreement and his September 2008 substantive appeal, the Veteran wrote that during his service in Vietnam he developed ringworm and received treatment for it. He reported that after service he experienced itching, including on his scalp. He related that later the itching worsened. He stated that he saw a dermatologist who diagnosed skin cancer and used liquid nitrogen to freeze the lesions. He related that he did not know earlier that his skin condition was cancer. He noted that he did not have skin itching or lesions before his military service. The Veteran had a VA skin examination in March 2012. The examining physician reported having reviewed the Veteran's claims file. The examiner found that the Veteran had a history of severe fungal infections of the groin and feet. The examiner noted that the Veteran had skin cancers of the face and neck diagnosed from 2004 forward. Based on how the lesions were treated, the examiner concluded that the cancers were basal cell carcinomas. The Veteran reported that he had his skin examined every six months, and that it had been about eighteen months since a clinician had frozen any lesions. The examiner provided diagnoses of two current skin conditions, tinea corporis affecting the skin of the feet and basal cell carcinoma of the face and scalp. The examiner provided the opinion that it is at least as likely as not that the tinea condition was caused by the Veteran's experiences in service in the jungles of Vietnam. The examiner provided the opinion that it is unlikely that the Veteran's recurrent basal cell carcinoma is related to his service experience or to exposure to Agent Orange during service. The examiner noted that the basal cell carcinoma started more than twenty years after the Veteran's service. The examiner stated the medical literature regarding Agent Orange and skin cancer contained references to malignant melanoma but not to basal cell carcinoma. The examiner noted that basal cell carcinoma is a common skin cancer in the population of persons over 50 years of age. The Veteran did not have skin cancer during service. His skin cancer was first diagnosed many years after service. The VA physician who examined the Veteran in 2012 provided and clearly explained the opinion that it is unlikely that the Veteran's post-service skin cancer is related to his service, including his exposure to herbicides during service. The examiner, as a physician, is competent to address questions of medical causation. The Board finds that his opinion has significant persuasive weight. There is no medical evidence or opinion supporting a connection between the Veteran's skin cancer and service. The Board therefore finds that the preponderance of the evidence is against service connection for the Veteran's skin cancer. ORDER Entitlement to service connection for skin cancer is denied. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs