Citation Nr: 1317213 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 07-01 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a skin disorder to include actinic (solar) keratosis and skin cancer claimed as the result of herbicide exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and the Veteran's spouse ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from July 1963 to July 1973. The Veteran served in the Republic of Vietnam and participated in combat. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Waco, Texas, Regional Office (RO) which, in pertinent part, denied service connection for a back disorder and skin cancer claimed as the result of Agent Orange exposure. In April 2010, the Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge sitting at the RO. A hearing transcript was prepared and incorporated into the record. In August 2010, the Board recharacterized the issue of service connection for a skin disorder as entitlement to service connection for a skin disorder to include skin cancer claimed as the result of herbicide exposure and remanded the Veteran's appeal to the RO for additional development of the record. In October 2012, the Board granted service connection for lumbosacral spine degenerative disc disease; recharacterized the Veteran's claim of entitlement to service connection for a skin disorder as a skin disorder to include solar keratosis and skin cancer claimed as the result of herbicide exposure; and remanded that issue to the RO for additional action. The action requested by the Remand has been accomplished. For this reason, the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to insure a total review of the evidence. FINDING OF FACT Actinic keratosis originated during active service. CONCLUSION OF LAW Actinic keratosis was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs (VA) to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on the claim for VA benefits. In the decision below, the Board grants service connection for actinic keratosis. As such action represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and to assist is necessary as to that issue. II. Service Connection The Veteran asserts that service connection for a skin disorder is warranted secondary to his extensive sun exposure and presumed herbicide exposure while a naval crewman aboard small craft patrolling rivers in the Republic of Vietnam. In his October 2006 notice of disagreement, the Veteran clarified that "I wish to amend my original claim of skin cancer to drop the word cancer and add the word condition" and "I agree my condition has not been diagnosed as cancer." Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). The claimed skin disorder is not a "chronic disease" enumerated under 38 C.F.R. § 3.309(a) (2012). Therefore, the provisions of 38 C.F.R. § 3.303(b) (2012) are not for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b) (West 2002). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fe d. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's service treatment records note that he was treated for athlete's foot in January 1964. At his July 1973 physical examination for service separation, the Veteran was reported to exhibit normal skin. The Veteran's service personnel records reflect that he served in the Republic of Vietnam aboard river patrol boats and participated in combat operations. Clinical documentation from J. Rosiles, M.D., dated in May 2001 notes that the Veteran presented a history of treatment for actinic lesions. The Veteran was diagnosed with actinic keratosis of the face and the arms. At the April 2010 hearing before the undersigned Acting Veterans Law Judge sitting at the RO, the Veteran testified that he had served aboard river patrol boats while in the Republic of Vietnam. He stated that: he had extensive exposure to the tropical sun while in the Republic of Vietnam; worked with his shirt off due to the heat; and sustained significant sunburns. The Veteran conveyed that he did not seek treatment for his sunburns. At a September 2010 VA examination for compensation purposes, the Veteran was diagnosed with "solar keratosis on sun exposed regions of the body." The VA examiner observed that "inspection of the areas reveals a pattern consistent with a classic pattern of solar keratosis." In a July 2011 addendum opinion to the September 2010 examination report, the examiner opined that: According to medical literature, the actinic skin damage, keratosis included, are usually caused in the first 28 years of sun exposure, the VA Form 2507 documents the Veteran's service July 1963 to July 1973 (10 years). I agree with [the VA examiner] that the Veteran's solar keratosis is not caused by exposure to Agent Orange but to lifelong exposure to sun rays. He is now 67 and has more years of sun exposure beyond the initial 28 years of sun exposure. Therefore, the Veteran's sun-related damage is not as likely as not (<50%) related to exposure to sun rays in service. At an April 2013 VA examination for compensation purposes, the Veteran was diagnosed with actinic keratosis. The examiner commented that: The Veteran has been diagnosed and treated for actinic keratosis according to his medical records in this C-file. His service treatment records do not indicate any treatment for skin problems including sunburn. Actinic keratosis is a condition of the skin associated with aging as well as sun exposure. There is no link to Agent Orange exposure. It is not linked only to sun exposure such as sunburns but also to normal sun exposure. The Veteran's arms, face (ears and face), neck and upper back have been treated with both freezing of the lesions and surgical excision. He is currently using fluorocracil cream to the face twice a day for treatment of his lesions. It is unlikely the Veteran's actinic keratosis is due specifically to his service in Vietnam or while in the Navy, in that all sun exposure affects the skin and the development of actinic keratosis. There is no indication from his service treatment records that the actinic keratosis began while in service and the veteran is unable to state when the actinic keratosis was first identified, but his civilian treatment records indicate a diagnosis 10-12 years ago. The diagnosis is common in those aged 50 and older whether or not there has been extensive sun exposure. Therefore, based on the Veteran's history, a review of military and civilian medical records and clinical experience and expertise, the Veteran's chronic skin disorder less likely than not had its onset during active service, is less likely than not related to the Veteran's in-service sun exposure and associated sunburns, duties in the Republic of Vietnam and/or presumed herbicide exposure or otherwise originate during active service. The Board has reviewed the probative evidence of record including the Veteran's testimony and written statements on appeal. Initially, the Board observes that the Veteran has specifically clarified that he has not been diagnosed with skin cancer and is therefore not seeking service connection for that disorder. Further, the clinical record conveys that the Veteran was not diagnosed with skin cancer during active service or at any point thereafter. The Veteran served in the Republic of Vietnam aboard naval patrol boats. He testified that he had extensive sun exposure with resulting sunburns while performing his military duties. The Board finds that such statements are competent, credible, and consistent with the circumstance of his military duties. The Veteran has been diagnosed actinic keratosis involving the exposed areas of his skin secondary to his sun exposure. While noting that the April 2013 VA examination report conveys that it was "unlikely the Veteran's actinic keratosis is due specifically to his service in Vietnam or while in the Navy, in that all sun exposure affects the skin and the development of actinic keratosis," the Board observes that the examiner did not conclude that the Veteran's inservice sun exposure was not a causative factor in the onset of his actinic keratosis. Upon application of the provisions of 38 U.S.C.A. § 1154(b) and resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for actinic keratosis. ORDER Service connection for actinic keratosis is granted. ____________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs