Citation Nr: 1314940 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 09-45 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for skin cancer to include as due to exposure to herbicide. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1971. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office. In May 2011 and December 2012, the Board remanded the appeal for further development. The Virtual VA paperless claims processing system contains additional VA outpatient treatment records that have been considered. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam from February 1970 to April 1971 and is presumed to have been exposed to certain herbicide agents. 2. The Veteran's residuals of surgery to remove a basal cell carcinoma and actinic keratoses on the right ear, on the neck, and on scattered areas of the forearms, first manifested after service and are not caused or aggravated by any aspect of service including exposure to herbicide. CONCLUSION OF LAW The criteria for service connection for skin cancer to include as due to exposure to herbicide are not met. 38 U.S.C.A. §§ 1110, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Where complete notice is not timely accomplished, an error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In April 2008, the RO provided a notice that met the requirements. The notice informed the Veteran of all criteria to substantiate a claim for service connection and the Veteran's and VA's respective responsibilities to obtain relevant evidence. The duty to notify is satisfied when claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board concludes that the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities in obtaining relevant evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA and private medical records are in the file. The Veteran has also not indicated that he is in receipt of Social Security Administration disability benefits or that there are any other federal records relevant to his claim. All records identified by the Veteran as relating to this claim have been obtained to the extent that they have been identified. The Board notes that in June 2011, a VA compensation and pension examiner noted the Veteran's report of treatment with topical therapy by a private dermatologist for a persistent rash that he had experienced since service. The examiner observed erythema and scales on the feet and left hand (but not the right ear, neck, or elbow) and onychomycosis of the toenails. The examiner diagnosed tinea pedis and tinea manus and concluded that this disorder was likely persistent since service. The examiner noted no reports by the Veteran or observations of actinic keratoses, skin cancer, surgical procedures, or cryotherapy. The Veteran was granted service connection for tinea pedis and tinea manus. The reported treatment by a private physician's treatment was for a skin rash (not cancer) that manifested with different symptoms, on different parts of the body, with a different history, and with a different method of treatment. For these reasons, the Board concludes that these private records are not potentially relevant to the claim for service connection for skin cancer and a remand to request these records is not necessary to decide the claim. The duty to assist applies only to potentially relevant documents. See Talley v. Brown, 6 Vet. App. 72, 74 (1993). "The legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the veteran substantiate his claims for benefits, the duty to assist requires VA to obtain the records." Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed.Cir.2010). However, "[t]here must be specific reason to believe these records may give rise to pertinent information to conclude they are relevant." Id. Despite receiving instructions regarding VA's duty to assist in obtaining private records, at no time did he associate this physician's treatment with his claim for skin cancer, provide the physician's full name and address or an authorization, or request that VA obtain records of this care. The duty to assist requires VA to make "reasonable efforts to obtain relevant records," as long as the claimant "adequately identifies" those records to the Secretary and authorizes the Secretary to obtain them. 38 U.S.C. § 5103A(b)(1); see also Loving v. Nicholson, 19 Vet. App. 96, 102 (2005). The duty to assist also includes providing a medical examination or obtaining a medical opinion when it is necessary to make a decision on a claim. The Veteran underwent VA skin examinations in June 2011 and December 2012, and the results have been included in the claims file. The examinations involved review of the claims file, a thorough examination of the Veteran, and in the latter, an opinion that was supported by sufficient rationale. Therefore, the Board finds that the examinations are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. Additionally, the Board finds there has been substantial compliance with its May 2011 and December 2012 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Following the examinations, the Appeals Management Center (AMC) later issued supplemental statements of the case in November 2009 and February 2013 with an appropriate opportunity to respond. The Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Therefore, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). The Veteran served as a U.S. Army engineer and heavy vehicle operator with service in the Republic of Vietnam. He contends that he experienced skin cancer as a result of exposure to herbicide. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, 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). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Basel cell sarcoma, actinic keratoses, and warts are not among those chronic diseases specified in 38 C.F.R. § 3.309(a). Therefore, the theory of continuity of symptomatology is inapplicable. Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In this case, service personnel records showed that the Veteran served in Vietnam for one year between 1964 and 1966 and is therefore presumed to have been exposed to certain herbicide agents. Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The specified diseases include chloracne or other acneform diseases consistent with chloracne, prophyria cutanea tarda, and a variety of soft tissue sarcomas. Melanoma and non-malignant sarcomas including basal cell carcinomas and actinic keratoses are not among those diseases for which presumptive service connection is available. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Claims based on Agent Orange exposure are unique in that entitlement is based on an analysis of scientific evidence, ordered by statute. 38 U.S.C.A. § 1116(b). The Agent Orange Act of 1991 (in part) directed the Secretary of Veteran Affairs to enter into an agreement with the National Academy of Sciences (NAS), Institutes of Medicine (IOM) (hereafter IOM) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. Whenever the Secretary determines that a positive association exists between exposure of humans to an herbicide agent and a disease, the Secretary will publish regulations establishing presumptive service connection for that disease. If the Secretary determines that a presumption of service connection is not warranted, he must publish a notice of that determination, including an explanation of the scientific basis for that determination. The Secretary's determination must be based on consideration of IOM reports and all other sound medical and scientific information and analysis available to the Secretary. See 38 U.S.C.A. § 1116(b)-(c). In response to eight IOM reports (and a special interim report), the Secretary published notices of these determinations in January 1994, August 1996, November 1999, January 2001, June 2002, May 2003, March 2005, June 2010, and August 2012 . The Secretary also reiterated that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. See 75 Fed. Reg. 32,540 (June 8, 2010). IOM issued Update 2008, and the Secretary added three additional disorders to the list of those for which the presumption of service connection is available. See 75 Fed. Reg. 52,303 (Aug. 31, 2010). IOM issued Update 2010 in September 2011, and the Secretary proposed a rule change to modify the presumption for peripheral neuropathy from transient to an early on-set, non-transient disease. See 77 Fed. Reg. 47,795 (August 10, 2012). The legal presumption for service connection for diseases based on exposure to herbicide in Vietnam is established by Congress in 38 U.S.C.A. § 1116 which requires VA to prescribe regulations based on statistical analysis taking into account reports by the National Academy of Sciences and all other sound medical and scientific information. To warrant presumptive service connection for a disease, there must be a positive association with exposure to herbicide used in Vietnam. Here, the appellant has not provided evidence or argument that VA has not followed the congressionally mandated process. To require the Secretary to grant service connection for disabilities based on the opinion of individual doctors that there is a statistical correlation between Agent Orange exposure and a disease not otherwise on the Secretary's list of diseases presumptively caused by Agent Orange would circumvent the congressional mandate that the Secretary designate a disease as presumptively caused by Agent Orange when "the credible evidence for the association is equal to or outweighs the credible evidence against the association." Polovick v. Shinseki, 23 Vet. App. 48 53-53 (2009) (citing Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19-20, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). It would also permit the opinions of individual doctors to trump the collective view of experts on this issue. Id. Therefore, the Board concludes that presumptive service connection for basal cell carcinoma and actinic keratoses based on exposure to herbicide is not available because the disease is not listed among those for which the Secretary has determined there is a positive association to exposure to herbicide in Vietnam. Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records are silent for any symptoms, diagnoses, or treatment for a skin disorder with the exception of treatment for athlete's foot in May 1970. No skin abnormalities were reported by the Veteran or noted by military examiners in a November 1968 induction examination or an April 1971 discharge physical examination. In a March 2008 claim, the Veteran noted that his skin cancer first manifested in 2006. In a May 2009 statement, the Veteran's mother noted that the Veteran had a growth on his left hand removed by a private physician shortly after returning from service in Vietnam. She also noted that the physician was deceased and that records of this treatment were not available. She also observed, "Over the years he has developed irritations at different places on his body." On the same day, the spouse noted that the irritation referred to by the mother occurred in the warm months on the Veteran's back and was treated with a rash cream with little success. The claims file contains records of private primary care from 1999 to 2008. In July 2005, a physician noted two actinic keratoses along the posterior of the Veteran's right ear. The lesions were removed with cryotherapy. In January 2006, the physician noted additional active actinic keratoses on the left posterolateral neck and left antecubital fossa that were removed with cryotherapy. Another lesion that appeared on the right ear was surgically removed and was diagnosed as basal cell carcinoma. The attending physician noted that he knew the Veteran for many years and that he was exposed to a lot of sunshine. The physician did not refer to any aspect of military service including exposure to herbicide. Although the physicians at the private clinic continued to note a history of the keratoses and basal cell carcinoma, the physicians did not observe or treat any additional lesions through 2008. VA outpatient treatment records from June 2006 through February 2013 also show notations of the history with no further lesions or treatment. In an August 2008 primary care treatment encounter, a VA physician noted the Veteran's report that while in Vietnam he constructed buildings in areas that had been sprayed with herbicide. The Veteran worked after service as a carpenter. The Veteran also reported that he had a wart surgically removed from his left hand. In June 2011, the Veteran underwent a VA skin examination. A physician noted a review of the claims file and the treatment for athlete's foot in service but did not comment on the treatment for lesions in 2006. The physician performed an examination of the skin of the entire body and observed erythema and scale on the feet and right hand. The physician diagnosed tinea pedis and tinea manus. He did not observe lesions on the ear, neck, or elbow. He further noted that the disorder was not consistent with chloracne or porphyria cutanea tarda. In December 2012, another VA physician noted a review of the claims file and accurately summarized the service and post-service history of the Veteran's skin disorder including the most recent treatment and surgery in 2006. The physician noted no incurrence of cancer or keratoses in service but acknowledged the Veteran's contention that his skin cancer and actinic keratoses were caused by events in service. The Veteran also reported that he had a benign wart on his left hand that manifested during service but was excised by a private physician in 1970. On examination, the physician noted a benign actinic horn on the right ear at the site of the previous surgery without scarring or disfigurement. The Veteran reported intermittent pain at the site, but the physician noted that the skin was healed without breakdown. The physician also noted erythematous changes on the posterior neck and scattered changes on the bilateral forearms consistent with actinic keratoses but also without scarring or disfigurement. The physician concluded that the basal cell carcinoma and actinic keratoses were not incurred or caused by events in service. The physician explained that skin cancers typically follow years of sun exposure that damages the skin in the form of actinic changes and that subsequently lead to skin cancer. The physician concluded that in this case the skin changes occurred more than 30 years after service and after years of sun exposure in the Veteran's occupation. The currently affected areas are sun exposed areas. He further explained that skin cancers are not related to chloracne or cutanea tarda and that the Veteran does not have an acneform condition. The Board concludes that service connection for skin cancer is not warranted. The Veteran's residuals of 2006 surgery for basal cell carcinoma are currently diagnosed as an actinic horn on the right ear, and the Veteran has scattered actinic keratoses on the neck and forearms. Service connection on a presumptive basis for exposure to herbicide is not available for these diagnosed disorders. There is competent medical evidence from two VA physicians that the skin cancer and actinic keratoses are not forms of the chloracne or acneform disorders for which the presumption is available. Service connection on a direct basis is not warranted because the weight of competent medical evidence is that the disorders manifested many years after service and are caused by sun exposure and not any aspect of service. Lay evidence is competent when a condition can be identified by a layperson. See 38 C.F.R. §§ 3.159(a)(1) and(2) (defining competent medical and lay evidence) and 3.307(b) (as to chronicity and continuity of symptoms lay evidence should describe material and relevant facts observed and not merely conclusions based upon opinion). Lay evidence may, in some circumstances, establish a medical diagnosis, causation or etiology, i.e., when a layperson (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009) (overruling the broad holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007) that competent medical evidence is required when the determinative issues if either medical etiology or a medical diagnosis); see also King v. Shinseki, 700 F.3d 1399 Fed.Cir. 2012); 2012 WL 6029502 (C.A.Fed.) (confirming that Davidson, Id., overruled the broad holdings noted above in Buchanan, Id., and Jandreau, Id.). The credibility of lay statements may not be refuted solely by the absence of corroborating medical evidence but this is a factor. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). Other factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). The Veteran, his mother, and his spouse are competent to report that he developed a wart in service that was removed shortly after service and that he experienced a seasonal rash on his back that he treated with creams. However, there is no evidence of recurrence or residuals of the wart, and therefore there is no current disability of the skin of the left hand. The spouse referred to the mother's observation of an irritation and also described the disorder as a rash or irritation and not a lesion or growth. She did not refer to cancer. The location was on the back and occurred seasonally. The disorder was treated with creams and not surgery or cryotherapy. She also suggested a continuity of symptoms since service and did not refer to the lesions that first manifested in 2006, many years after service. The spouse's statement is relevant to a disorder for which service connection has been granted but not relevant to the claim on appeal. The Veteran is competent to report that he has had actinic keratoses since service, but is not competent to determine the cause of this disorder or the incident of cancer because this determination requires medical expertise. No skin abnormalities were reported by him or noted in service treatment records other than treatment for athlete's foot. The Veteran has been granted service connection for tinea pedis and tinea manus. The Board concludes that the lay evidence of actinic keratoses since service is not credible because it is inconsistent with the records prior to 2005 when no keratoses were observed by clinicians. Moreover, the VA physician did not accept the report of an onset in service, noting that the keratoses develop over long periods of exposure to the sun consistent with the Veteran's 30 year occupation as a painter and carpenter. The Board acknowledges that the Veteran was likely exposed to sun during his eighteen months of service in a tropical climate. However, the record shows that the Veteran also lived for much longer periods of time after service in a southern state. The Board places greatest probative weight on the conclusion of the VA physician in 2012 who evaluated the entire history and concluded that the actinic keratoses leading to basal cell carcinoma on the right ear was not caused by sun exposure in the short period of service but rather the several decades of occupational exposure after service. The opinion is not contradicted by other competent medical evidence. Neither the VA examiners nor the Veteran's private physicians provided any opinion that the disorders were caused by herbicide agents or otherwise related to military service. The weight of the credible and probative evidence demonstrates that the Veteran's current residuals of surgery to remove basal cell carcinoma from the right ear and scattered actinic keratoses on the neck and forearms first manifested after service and are not related to his active service or any incident therein. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for skin cancer to include as due to exposure to herbicide is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs