Citation Nr: 1319624	
Decision Date: 06/18/13    Archive Date: 06/27/13

DOCKET NO.  12-32 657	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

Entitlement to service connection for residuals of metastatic melanoma.


REPRESENTATION

Appellant represented by:	Paul Bradley, Agent


ATTORNEY FOR THE BOARD

L. Zobrist, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1969 to August 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  A notice of disagreement was received in May 2012, a statement of the case was issued in October 2012, and a substantive appeal was received in November 2012


FINDING OF FACT

Metastatic melanoma was not manifested during the Veteran's active duty service or for many years thereafter, nor is it otherwise related to the Veteran's active duty service (to include the Veteran's exposure to herbicides during service).


CONCLUSION OF LAW

Metastatic melanoma was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been incurred in or aggravated by such service.  38 U.S.C.A. §§ 1101, 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).


Duty to Notify

Upon receipt of a complete application, VA 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 U.S.C.A. § 5103(a).

The notice requirements apply to all five elements of a service connection claim: 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).  The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

The RO provided the appellant with proper notice by letter dated in October 2011.  This notice complied with the specificity requirements of Dingess, identifying the five elements of a service connection claim, and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. 

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

Duty to Assist

Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations.  VA has obtained service treatment records (STRs) and private treatment records identified by the Veteran.  The Veteran denies receiving any treatment at VA facilities.  Thus, the Board finds that no additional assistance in this regard is required.

The Veteran avers that he served on the ground in Vietnam and that herbicide exposure should, as a result, be presumed.  Military records confirm that the Veteran served in the Republic of Vietnam from October 1970 to May 1971.  Therefore, herbicide exposure is conceded and further development on this matter is unnecessary.

With regard to service connection issues being decided herein, the Board finds that a VA medical examination (with nexus opinion) is not required in order to make a final adjudication.  McLendon v. Nicholson, 20 Vet. App. 79 (2006), states that, in disability compensation (service connection) claims, VA must provide a medical examination [for a nexus opinion, as applicable] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (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 VA to make a decision on the claim.

The Board finds that the standards set forth in McLendon are not met with regard to the issue on appeal in this case.  As discussed below, malignant melanoma is not among the listed diseases that may be presumptively service-connected if manifested in an herbicide-exposed veteran.  The record otherwise contains no competent scientific or medical evidence supporting a connection between malignant melanoma and herbicide exposure.  Furthermore, the Veteran has provided no competent evidence indicating that his UV light exposure during service is causally related to his current disability.  Thus, there is no indication that the Veteran's current disability is associated with his service or with another service-connected disability.  Additionally, as discussed below, the Board finds that any allegation that the Veteran had a sunburn in service is less than credible.  See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that VA was not required to provide a medical examination when the Board does not find the Veteran' statements credible).  Consequently, a VA nexus opinion is not necessary to adjudicate the claim on appeal.

All known and available records have been obtained and associated with the Veteran's claims file, and the Veteran and his representative have not contended otherwise.  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter and that no further development of the evidentiary record is necessary.  VA has complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claim at this time.

Analysis

As a preliminary matter, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

This appeal involves a claim of entitlement to service connection for melanoma based on exposure to excessive amounts of UV light or as secondary to herbicide exposure.

Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also 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).  Certain chronic disabilities, such as tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1133; 38 C.F.R. §§ 3.307, 3.309.

Applicable law also provides that a veteran who, during active service, served during a certain time period 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 he was not exposed to any such agent during service.  38 U.S.C.A. § 1116; see also Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  Regulations further provide, in pertinent part, that if a veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, certain 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 that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e).  The Board has conceded service in Vietnam during the relevant timeframe and, therefore, presumes that the Veteran was exposed to herbicides.  

Service connection to certain disabilities, listed in 38 C.F.R. § 3.309(e), may be presumed for herbicide-exposed veterans, without a showing of nexus, provided that the requirements of 38 C.F.R. § 3.307(a)(6) are met and that presumptive herbicide exposure is not rebutted under § 3.307(d).  Melanoma does not appear on the enumerated list of presumptive conditions in § 3.309(e).  The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41,442-49 (1996). The Secretary has further 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, inter alia, skin cancer.  See Notice, 68 Fed. Reg. 27,630-41 (May 20, 2003).  The Board finds that malignant melanoma secondary to herbicide exposure is not a disability that may be service connected on a presumptive basis.

Failure to establish presumptive service connection based on herbicide exposure does not preclude the veteran, however, from establishing direct service connection.  In Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994), the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis.  As such, the Board must not only determine whether the veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicide agents that were used in Vietnam and elsewhere, but must also determine whether his current disability is the result of active service under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303.  

To effect a determination regarding service connection on a direct basis, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, supra.

A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses.  38 C.F.R. § 3.159 (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); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. at 310 ("[T]he Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms.").  In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).

Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau).

VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence.  See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).

Although he has not reported such, the Veteran is competent to report that he suffered sunburns, or other injuries related to UV light exposure and capable of lay observation, in service.  However, the Veteran is not competent to determine the etiology of conditions requiring that the proponent have specialized education, training, or experience, such as malignant melanoma.

The Veteran avers that his malignant melanoma is the direct result of either in-service herbicide exposure or excessive in-service UV light exposure.  However, he has presented no evidence, other than his own lay statements, supporting either theory of causation.  The Board finds that the disability on appeal, cancer, is not one for which a layperson is competent to provide etiology or nexus evidence, and the Veteran has not demonstrated that he has the necessary competence or specialized medical training and expertise required to competently determine the etiology of his malignant melanoma.  Therefore, the Board finds that the Veteran's lay statements with respect to the etiology of his malignant melanoma are not competent evidence.   

Furthermore, the Board finds the Veteran's lay statements with respect to UV light exposure in service less than credible.  In his notice of disagreement, the Veteran contends that he was exposed to more UV light while in service than after service, that he had no family history of skin cancer, and that "his employment post active duty was of an office type."  However, in two medical reports written by Dr. S. A. and provided by the Veteran, one of which is dated January 2011, the Veteran reported that he was an outdoor construction worker who has "always worked outdoors in the sun" without sunscreen, that "his father has had 3 melanomas in his past," and that he had two serious sunburns postservice.  (The other report is dated March 2000, but this appears to be an error.  The second report clearly refers to the same melanoma as the first, and both reports provide the same contemporaneous ages for the Veteran and his family.)  The Board finds that statements made in the context of seeking medical treatment are more probative than those made in connection with a claim for monetary benefits.  In addition, the Board finds it reasonable that, if the Veteran had suffered, in service, any event or injury (such as a serious sunburn) as a result of UV light exposure, the Veteran would have noted such incident when providing a history of UV light exposure for treatment purposes; he described only postservice employment and sunburns.  Thus, the Board finds the Veteran's lay statements with regard to a comparison of UV light exposure in and after service less than credible and of little probative weight.

As to the other evidence of record, while the Veteran has provided a number of private treatment records, none refer to the Veteran's military service as a possible contributor to the etiology of his malignant melanoma.  Private treatment records refer to the Veteran's family history of melanoma (his father had at least 3 melanomas); a postservice history of outdoor construction work, for which it was noted that he did not wear sunscreen; and two serious postservice sunburns, see report from Dr. S. A. noting sunburn at age 24, while fishing, and another on his honeymoon; see also Veteran's Form DD 214 (noting separation from service in August 1972, at 22 years of age) and initial claim (noting marriage in May 1977), but are negative for reference to in-service exposure or injury, to include sunburns or herbicide exposure.  Consequently, the Board finds that there is no competent or credible evidence of a nexus between the Veteran's current disability and either his in-service UV light exposure or his exposure to herbicides.

In sum, the competent, credible evidence of record shows that the Veteran's malignant melanoma did not manifest in or have its onset during service or within any presumptive period thereafter.  There is no competent or credible evidence supporting the Veteran's contention that his seven-month service in the Republic of Vietnam resulted in more damaging UV light exposure than in the following 40 years, which include significant outdoor work without the use of sunscreen.  The competent medical evidence provides no nexus between the Veteran's malignant melanoma and in-service exposure to herbicides or excessive UV light.  The probative evidence thus weighs against the Veteran's claim with regard to all pertinent theories of service connection in this case.  The only evidence presented in this case which contradicts the probative evidence discussed above is the Veteran's own lay assertion that his melanoma is etiologically linked to his military service.  However, the Veteran is not competent to provide evidence establishing an etiological link between melanoma and a specific exposure or another medical pathology.

The Board finds that, in this case, service connection is not warranted with regard to residuals, metastatic melanoma because the preponderance of the evidence is against finding that any such disability manifested during service, manifested within a year following service, or is otherwise etiologically linked to service.  As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for malignant melanoma is denied.  See 38 U.S.C.A. § 5107.



ORDER

The appeal is denied.



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs