Citation Nr: 1317085 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-37 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for Raynaud's syndrome, to include as secondary to herbicide exposure. 2. Entitlement to service connection for squamous cell carcinoma of the right temple, claimed as skin cancer, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In July 2009, the RO denied service connection for skin cancer. In December 2009, the RO denied service connection for Raynaud's syndrome. The Veteran perfected appeals of both denials. The Veteran's Virtual VA file has also been reviewed as part of his appeal. FINDINGS OF FACT 1. Raynaud's syndrome is not etiologically related to service. 2. Squamous cell carcinoma and actinic keratosis of the right temple are etiologically related to service. CONCLUSIONS OF LAW 1. Raynaud's syndrome was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Squamous cell carcinoma and actinic keratosis of the right temple were incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 With respect to the Veteran's claim for skin cancer, the Board is fully granting the benefit sought on appeal. Assuming that any error was committed with respect to the duty to notify or the duty to assist for that issue, such error was harmless and will not be further discussed. With respect to his claim for service connection for Raynaud's syndrome, under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to the initial adjudication of the Veteran's claim, a letter dated in November 2009 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He was also notified of the criteria for establishing an effective date and disability rating. See Dingess. Therefore, he received complete notice regarding his claim for service connection. The Veteran's service treatment records, private treatment records, and lay statements have been associated with the claims file. No VA medical examination or opinion has been obtained with respect to the Veteran's claim for service connection for Raynaud's syndrome. The evidence does not reflect a relationship of a current disability to service, and therefore a remand for an examination or opinion is not necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in service connection claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. As discussed below, the evidence does not satisfy the standards of McLendon, as there is no indication of a relationship between the Veteran's current disability and service. See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (holding that medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with the claimant's service). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In addition, certain chronic diseases, including Raynaud's disease, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307 (2012). If a veteran was exposed to herbicide agents during service, the following diseases shall be service-connected if the requirements of 38 C.F.R. 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; 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); Type II diabetes mellitus, and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). In addition, effective August 31, 2010, VA has amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to an herbicide agent (to include Agent Orange). 75 Fed. Reg. 53202-53216 (August 31, 2010). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, 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, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). A. Raynaud's Syndrome The Veteran served in the Republic of Vietnam during the Vietnam era, and he is presumed to have been exposed to herbicides during service. However, Raynaud's syndrome is not listed among the presumptive diseases recognized as associated with herbicide exposure, and the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Disease Not Associated With Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002). Nevertheless, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The U.S. Court of Appeals for Veterans Claims (Court) has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). The Veteran submitted an October 2009 letter from a private nurse practitioner. She stated that the Veteran reported symptoms of vasospasm, primarily affecting his hands. These symptoms were consistent with Raynaud's phenomenon, and had been present for 20 years. She noted that he was exposed to Agent Orange, and that he had provided her with a report from VA listing Raynaud's disease as being associated with Agent Orange. However, this opinion does not directly relate the Veteran's current Raynaud's syndrome to herbicide exposure in service. Instead, it only repeats the erroneous assertion that Raynaud's disease has been positively associated with herbicide exposure by VA. Service connection for Raynaud's syndrome has also been considered on a direct basis, irrespective of the Veteran's herbicide exposure. However, treatment records contain no complaints, treatment, or diagnoses of the condition in service or within one year of the Veteran's discharge. Enlistment and separation examinations noted no relevant abnormalities, and the Veteran denied a history of any related symptoms. The Veteran's own statements regarding his condition have also been considered. However, his statements also rely on the erroneous argument that Raynaud's syndrome is presumed to be related to herbicide exposure under the applicable regulations. To the extent that he is asserting a direct relationship between his condition and herbicides, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the relationship between Raynaud's syndrome and herbicide exposure falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has also not specifically asserted that his symptoms had their onset during his period of service, and the October 2009 letter stated that symptoms started 20 years ago, or approximately 1989 - approximately 20 years after the Veteran was discharged from active duty. The preponderance of the evidence is against finding that the Veteran has Raynaud's syndrome etiologically related to active service, and the claim is denied. In making this determination, the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt have been considered, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. B. Skin Cancer The Veteran also argues that he has skin cancer related to herbicide exposure in service. Private treatment records reflect diagnoses of squamous cell carcinoma and actinic keratosis of the right temple. However, skin cancer is not among the conditions listed as presumptively due to herbicide exposure. The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for non-melanoma skin cancer (basal cell and squamous cell). See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); 74 Fed. Reg. 21,258-21260 (May 7, 2009); 75 Fed. Reg. 32540 (June 8, 2010). There is no competent evidence directly linking the Veteran's diagnosed conditions to herbicide exposure, and he is not competent to render such an opinion himself. Therefore, service connection for skin cancer due to herbicide exposure is not warranted. The Veteran also contends that his conditions are the result of sun exposure during his service in Vietnam. The Veteran is competent to describe such exposure, and his statements are credible, as they are consistent with the places, types, and circumstances of his service. See 38 U.S.C.A. § 1154(a). An August 2009 letter from the Veteran's dermatologist stated that she had been treating him since February 2008 for several precancerous areas and a skin cancer on his right temple. She stated that it was very likely that his significant exposure to the sun during his time in Vietnam contributed to the development of these precancerous and cancerous lesions. Service connection for squamous cell carcinoma and actinic keratosis of the right temple is warranted. The Veteran is currently diagnosed with the conditions, and there is competent medical evidence linking them to the Veteran's service. There is no other opinion to refute this conclusion or otherwise suggest that the Veteran's skin conditions are not attributable to sun exposure in service. ORDER Service connection for Raynaud's syndrome is denied. Service connection for squamous cell carcinoma and actinic keratosis of the right temple is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs