Citation Nr: 1316375 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-29 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for scars as a residual of a service-connected skin disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1954 to April 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2011, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Board notes that the issue of entitlement to an initial evaluation in excess of 30 percent for a skin disorder, initially diagnosed as actinic keratosis, then generalized urticaria, was developed on appeal from a November 2008 rating decision implementing an October 2008 Board decision. This issue was denied by the Board in November 2012. The Board in its November 2012 decision also found, in essence, that the issue of entitlement service connection for scars as a residual of a skin disorder had been raised by the record and remanded the issue for additional development. This matter was addressed in an April 2013 supplemental statement of the case and has been continued as an issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence demonstrates the Veteran has scars as a result of the treatment for his service-connected skin disorder. CONCLUSION OF LAW The Veteran has scars as a result of his service-connected skin disability. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in January 2013. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, private medical reports, Virtual VA records, and statements and testimony in support of the claim. A review of the record reveals the development requested upon remand in November 2012 was not adequately completed and, specifically, that the Veteran's scars were not described and photographs were not taken. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds, however, that the information provided is adequate for a determination as to the present issue on appeal. Further attempts to obtain additional evidence would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). There has been substantial compliance with the duties to notify and assist and to adjudicate the claim would not cause any prejudice to the appellant. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of 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 that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The pertinent evidence of record shows that in an October 2008 decision the Board reopened a claim for entitlement to service connection for a skin disorder due to radiation exposure and granted entitlement to service connection. In a November 2008 rating decision the RO established a 30 percent rating for actinic keratosis (claimed as skin cancer and lesions). The Board denied entitlement to a rating in excess of 30 percent in November 2012. The available evidence includes treatment records and photographs indicating actinic keratoses with treatment by cryosurgery with liquid nitrogen to various lesions. A September 2006 private medical report noted the Veteran had lesions scattered over his hands and face and a marked degeneration of his skin with extreme light sensitivity having developed multiple lesions to the upper and lower extremities that were compatible with possible early cancerous lesions as likely as not caused by his prior ionizing radiation exposure. VA examination in November 2008 included a diagnosis of actinic keratoses. The examiner noted the Veteran had no active skin lesions or rash, but that there were small healed brownish spots or scars over his occipital area of the scalp and on either side of the upper part of the bridge of his nose (near the canthus of both eyes). It was noted that he had been treated in March 2008 and April 2008 for actinic keratoses on the face with liquid nitrogen cryosurgery. An April 2013 VA examination report noted the Veteran had scars associated with his actinic keratoses. The examiner noted he had multiple areas of actinic keratoses that were skin changes associated with lifelong sun exposure. The Veteran was noted to be at high risk for skin damage from solar exposure and that he had lived in the Southwest which was an area with high sun exposure. He had the classic presentation of actinic keratoses on the back of his hands, forearms, face, and bald head. It was noted this condition was very common in the general population, was related to a lifetime of sun exposure, and was not related to his nuclear military exposure. The examiner noted the Veteran had scars from cryotherapy for his actinic keratoses, but erroneously indicated service connection had not been established for that disability. Based upon the evidence of record, the Board finds the evidence demonstrates the Veteran has scars as a result of the treatment for his service-connected skin disorder. VA records clearly show that service connection is established for actinic keratosis (claimed as skin cancer and lesions). Although the April 2013 VA examiner has expressed the opinion that the Veteran's actinic keratosis was not related to his military ionizing radiation exposure, service connection is not presently an issue for appellate review nor is there any indication of any pending action to severe service connection. The Board notes that the evidence of record does not indicate the specific locations and present symptom manifestations of the Veteran's scars as a result of his treatment for actinic keratoses pertinent to an evaluation of a disability rating, but that the issue for appellate review in this case is entitlement to service connection. There is no dispute in the available evidence that the Veteran has scars that are a residual of his cryosurgery treatment for actinic keratoses. Therefore, the claim for entitlement to service connection for these scars must be granted. ORDER Entitlement to service connection for scars as a residual of a service-connected skin disorder is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs