Citation Nr: 1321233 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 09-39 863 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for basal cell carcinoma, to include as due to herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy of the lower extremities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1965 to October 1970. The matter of service connection for basal cell carcinoma, to include as due to herbicide exposure initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the RO. In January 2012, the Board remanded the claim of service connection for basal cell carcinoma for additional development. For the following reasons, the RO/Appeals Management Center (AMC) complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). A review of the Veteran's Virtual VA electronic claims file reveals additional VA outpatient treatment records dated through February 2012. As these records have been reviewed by the AMC, as noted in February 2012 Supplemental Statement of the case, remand for initial RO consideration of the evidence is not warranted. The electronic claims file also reflects that the Veteran expressed disagreement with a March 2011 rating decision denying service connection for tinnitus. This matter is referred to the RO for additional development. In addition, an October 2012 Disability Benefits Questionnaire has been associated with the claims file. As the questionnaire addresses the Veteran's diabetes mellitus and neuropathy, and not the claim for basal cell carcinoma, remand for initial RO consideration of this evidence is not warranted. The issue of service connection for peripheral neuropathy of the lower extremities is being remanded to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. While the Veteran is presumed to have been exposed to herbicides, to include Agent Orange, during his service in the Republic of Vietnam, basal cell carcinoma is not among the disabilities recognized by VA as etiologically related to herbicide exposure. 2. The Veteran is not shown to have exhibited a combination of manifestations or sufficient observations to establish the presence of basal cell carcinoma during service. 3. The Veteran is not found to have presented credible lay assertions that are sufficient to establish a continuity of symptomatology referable to basal cell carcinoma after service. 4. The currently demonstrated basal cell carcinoma is not shown to be due to an event or incident of the Veteran's period of active service, to include exposure to herbicides. CONCLUSION OF LAW The Veteran's disability manifested by basal cell carcinoma is not due to disease or injury that was incurred in or aggravated by service; nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO provided a pre-rating VCAA notice letter to the Veteran in March 2007. The letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in the March 2007 pre-rating letter. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements has been satisfied. All available service treatment records were obtained. VA outpatient treatment records dated through February 2012 and private records have also been obtained. The Veteran has not indicated that he had any other additional information or evidence to submit in support of his claim. Pursuant to the Board's January 2012 remand, the Veteran underwent VA examination in February 2012 to obtain medical evidence as to the nature and likely etiology of the claimed basal cell carcinoma. The examiner provided the requested opinions thus complied with the Board's remand instructions in this regard. Stegall, 11 Vet. App. at 271. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to the current appeal, this list includes malignant tumors. See 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, 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 Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran seeks service connection for basal cell carcinoma on the basis that it stems from his period of active service, specifically his in-service exposure to herbicides while serving in the Republic of Vietnam. There is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era. See 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) 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; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; hairy cell leukemia and other chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); Parkinson's disease; and ischemic heart disease. 38 C.F.R. § 3.309(e). The Veteran served in the Republic of Vietnam during the Vietnam era. Thus, he is presumed to have been exposed to herbicides, to include Agent Orange. See 38 C.F.R. § 3.307(a)(6)(iii). However, as indicated above, the claimed basal cell carcinoma is not among the disabilities recognized by VA as associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Hence, presumptive service connection for the claimed basal cell carcinoma based on his presumed herbicide exposure is not warranted. However, the regulations governing presumptive service connection for herbicide exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). Accordingly, the Board will proceed to evaluate the Veteran's claim under the provisions governing direct service connection, 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303. The Board notes that the Veteran's service treatment records do not reflect any complaints or findings referable to skin disease or skin cancer. A September 1970 discharge examination yielded normal findings with respect to the skin. Following the Veteran's discharge from service, the VA outpatient treatment records reflect that the Veteran was seen for suspicious skin lesions in 2006. In June 2006, an examination revealed the presence of a basal cell carcinoma of the right nasal sidewall, skin tags of the eyelids, basal cell carcinoma of the left upper back, a brown macule of the left upper back with dermoscopy revealing multiple black dots with some pigment irregularity, seborrheic keratosis of the right flank, and a papule of the right forehead, translucent with telangiectases. In July 2006, it was noted that the Veteran underwent recent biopsy of skin lesions of the left upper back and forehead. It was suspected that the left upper back lesion was basal cell carcinoma. In August 2006, the Veteran presented with a three year history of a right upper nasal side wall lesion consistent with basal cell carcinoma. The Veteran underwent excision of various skin tags and the nasal lesion and left upper back lesion in August 2006. A September 2006 VA outpatient treatment report notes that the Veteran was status post excision of malignant neoplasms of the skin of the face including the right nose and left cheek, as well as removal of skin tags from the right upper and lower eyelid. Diagnosis of basal cell carcinoma of the right nasal and upper back area was indicated. A February 2008 VA outpatient treatment report includes a copy of a pathology report from a private physician. The report notes that the result of a right ear shave biopsy was that of basal cell carcinoma with areas of spindling and squamous differentiation (metatypical basal cell carcinoma). A right forehead shave biopsy revealed warty dyskeratoma. In March 2008, the Veteran underwent excision of the malignant skin lesion of the right ear. In a June 2008 statement, a private physician indicated that the Veteran had been diagnosed with skin cancer as well as diabetes mellitus, neuropathy, and erectile dysfunction. He opined that all of these symptoms could have been exacerbated by his exposure to Agent Orange while stationed in Vietnam. The Veteran was afforded a VA examination in February 2012 to determine the nature and likely etiology of the claimed basal cell carcinoma. The examiner discussed the Veteran's pertinent medical history, noting that the Veteran was diagnosed with basal cell carcinoma of the left upper back and right nose in August 2006. He was diagnosed with basal cell carcinoma of the right ear by excisional biopsy in April 2008. There was no recurrence of the conditions, and the Veteran was currently in "watchful waiting status." After an examination, the examiner diagnosed basal cell carcinoma of the back, nose, and right ear, post excision and without current recurrence. The examiner also indicated that he reviewed the Veteran's entire claims file. He opined that the Veteran's basal cell carcinoma was less likely than not incurred in or caused by in-service injury, event or illness. In so finding, the examiner noted that the Veteran's service treatment records reflect that the Veteran was not treated in service for any form of skin cancer. With respect to submitted medical statement that the Veteran's skin cancer could have been exacerbated by herbicides while in Vietnam, the examiner noted that it did not offer a rationale or state that the Veteran's treatment records had been reviewed. He further noted that the private physician did not state or appear to imply that an herbicide was causative of the skin cancer. The examiner found that it would be less than likely that the herbicide could exacerbate or aggravate a condition that had not yet occurred. The examiner further noted that the initial June 2006 pathology report showed the presence of solar elastosis consistent with actinic keratosis in areas adjacent to the carcinoma sites, and indication that these areas of skin had significant ultraviolet exposure. The Veteran reported at the examination that he lived in Brazil from 1947 (6 months of age) to 1965, when he joined the military. After service, he lived in Miami until 1993. The examiner noted that both of these geographical areas were of such latitude that the Veteran would have had significant ultraviolet sunlight exposure. The Veteran also reported that he was adopted and was unsure of his genetics; however, his adoptive mother, who lived in South America from about 1940 to 1965, also had skin cancer. The examiner noted that this relationship indicated a likely environmental etiology, since both the Veteran and his adoptive mother had a skin condition. The examiner further pointed out that basal cell carcinoma was a non-melanocystic skin cancer that arose from the epidermal basal cells. He indicated that, based upon his review of medical literature, the majority of these cancers occurred on areas of skin that were regularly exposure to sunlight or other ultraviolet radiation. In addition, he noted that the likelihood of developing basal cell carcinoma increased with age with a latency period of 20 to 50 years typical between time of ultraviolent damage and clinical onset. Other etiologies included other radiation exposure, gene mutation, arsenic ingestion, immunosuppression and albinism. Citing to medical articles, the examiner noted that Agent Orange herbicide exposure was not associated with causing basal cell carcinoma of the skin. Thus, in conclusion, the examiner opined that the Veteran's basal cell carcinoma was more likely than not related to ultraviolet sunlight exposure and less likely than not related to, caused by, or aggravated by herbicide exposure in Vietnam. The evidence establishes a current diagnosis of basal cell carcinoma of the back, nose, and right ear, status post excision. As to whether the Veteran's basal cell carcinoma is related to service-in particular to in-service exposure to herbicides-the records contains conflicting evidence. While the February 2012 VA examiner found such a relationship less likely than not, private physician Dr. M. opined that the Veteran's skin cancer was aggravated by in-service herbicide exposure. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. See also Obert v. Brown, 5 Vet. App. 30 (1993); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the private physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds the February 2012 VA medical opinion to have significant probative weight in this case as it reflects the most comprehensive and reasoned review of the entire evidentiary records. The examiner provided a rationale for the conclusions reached, specifically considered the Veteran's medical history, reviewed the Veteran's entire claims file, and referenced pertinent medical literature in formulating his opinions. While the private physician suggested a potential relationship between the Veteran's skin cancer and in-service exposure to herbicides, he did not provide a definitive, reasoned opinion specific to the Veteran's medical history and treatment records. Unlike the VA examiner, he did not appear to have access to the claims file, nor did he cite to any medical literature or other rationale in providing his opinion. Therefore, the Board affords this opinion little probative weight. Likewise, there is no competent and credible evidence of record showing the manifestation of a malignant skin disability to a compensable degree within one year of separation from service. In fact, as noted, there is no medical evidence of diagnosis until 2006, and the Veteran himself has not indicated that he was diagnosed or treated for basal cell carcinoma in service or for many years thereafter. Thus, service connection is not warranted on a presumptive basis. Moreover, the Veteran has not presented credible lay assertions that are sufficient to establish a continuity of symptomatology referable to chronic basal cell carcinoma after service, nor is there any evidence of record documenting a combination of manifestations or sufficient observations to establish the presence of basal cell carcinoma during service. Finally, the Board has also considered the Veteran's statements to the effect that his basal cell carcinoma is related to his military service, to specifically include in-service exposure to herbicides. As a lay person, the Veteran is competent to report that he personally observed, including symptoms. See Layno, 6 Vet. App. at 470. However, the question of diagnosis or etiology goes beyond a simple and immediately observable cause-and-effect relationship. As such, he is not competent to render a diagnosis or opinion as to the etiology as to his claimed basal cell carcinoma. See Jandreau, 492 F.3d at 1372. "The beliefs of lay witnesses (including claimants) on issues of diagnosis and medical causation are not competent evidence in situations where those issues require medical expertise to resolve." Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). In any event, the probative value of the Veteran's general assertions in this regard is outweighed by that of the specific, well-reasoned opinion of the physician who performed the February 2012 VA examination. In summary, the Board finds that the preponderance of the evidence establishes that the currently demonstrated basal cell carcinoma is not due to a documented event or incident of his period of service, to include exposure to herbicides therein. Accordingly, on this record, the claim of service connection for basal cell carcinoma must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 49. ORDER Service connection for basal cell carcinoma, to include as due to herbicide exposure, is denied. REMAND Concerning the issue of service connection for peripheral neuropathy of the lower extremities, the record reflects that the RO denied the Veteran's claims of service connection for peripheral neuropathy of the right and left lower extremities in an August 2009 rating decision. Subsequently, in a statement received in September 2009, the Veteran indicated that he disagreed with the rating decision of August 2009 to the extent that the RO denied service connection for neuropathy of the lower extremities. The September 2009 statement clearly reflects disagreement with the denial of service connection for peripheral neuropathy of the lower extremities. The claims file does not contain any Statement of the Case (SOC) for the issue and the Board must therefore remand it for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). Accordingly, this additional matter is REMANDED for the following action: The AOJ should issue a Statement of the Case that addresses the issue of service connection for peripheral neuropathy of the lower extremities. The Veteran should be informed that, in order to perfect an appeal as to these issues for review by the Board, he must file a timely an adequate Substantive Appeal following the issuance of the Statement of the Case. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs