Citation Nr: 1322275 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 06-07 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a digestive disability. 2. Entitlement to service connection for skin cancer. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran had active military service from August 1968 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran was afforded an October 2007 Board hearing before the undersigned. In January 2008, the Board, among other things, granted a petition to reopen a claim of service connection for a digestive disability and remanded the Veteran's claims identified above for additional development. In February 2010, the issues were again remanded for further development. A review of the Virtual VA paperless claims processing system electronic folder (efolder) shows that updated VA treatment records are available. The agency of original jurisdiction (AOJ) considered these records in August and October 2012 supplemental statements of the case. FINDINGS OF FACT 1. A digestive disorder is not attributable to the Veteran's period of military service, including radiation treatment for testicular cancer. 2. Skin cancer is not attributable to the Veteran's period of military service, including radiation treatment for testicular cancer. CONCLUSIONS OF LAW 1. The Veteran does not have a digestive disorder that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.311 (2012). 2. The Veteran does not have skin cancer that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), has been in effect since November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision has been accomplished. Through January 2004, March 2006, and February 2008 notice letters, the RO notified the Veteran of the information and evidence needed to substantiate his claims of service connection. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). While notice for the elements of a disability rating and effective date were not furnished until after the issuance of the initially appealed rating decision, the appeal was subsequently readjudicated in multiple Supplemental Statements of the Case, the most recent being issued in October 2012. This course of corrective action fulfilled VA's notice requirements. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Board also finds that the January 2004 and February 2008 notice letters substantially satisfied the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In these letters, the RO notified the Veteran that VA was responsible for obtaining records from any Federal agency and would make reasonable efforts to obtain evidence from non-Federal custodians. He was invited to submit any evidence in his possession. A remand for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist. The Veteran's service treatment records (STRs), personnel records, and pertinent VA treatment records have been obtained and associated with the claims file. The Veteran was afforded a digestive system examination in July 2012 with a September 2012 addendum medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Although the Veteran was not provided a clinical dermatology examination, appropriate medical opinions were obtained in February and March 2012 based upon review of the record. Id. Notably, skin cancer is considered a radiogenic disease under 38 C.F.R. § 3.311. The Appeals Management Center (AMC) obtained the Veteran's service personnel file, had the Veteran fill out a radiation risk activity information sheet, and requested information about the Veteran's in-service radiation exposure from the Air Force Medical Support Agency (AFMSA). The record does not show occupational ionizing radiation exposure. However, the Veteran submitted a private hospital record confirming that he had received a 4500 RAD dose in service for testicular cancer treatment. With this information, the AMC obtained February and March 2012 advisory opinions from the Director of Post-911 Era Environmental Health Program and Director of Compensation Service on behalf of the Under Secretary for Health. These actions comply with VA's duty to develop claims for radiogenic disease under 38 C.F.R. § 3.311. At the October 2007 hearing, the undersigned identified the issues on appeal. The Veteran provided testimony as to symptoms and all treatment received for his claimed disabilities and, thereby, demonstrated actual knowledge of the ability to submit additional relevant evidence. In January 2008, the Board awarded an increased rating for diverticulosis, reopened the previously denied service connection claim for a digestive disability, and remanded the claims currently on appeal to further assist the Veteran in obtaining outstanding medical records, providing a radiation dose estimate and advisory opinion, and furnishing an appropriate VA examination. The record reflects substantial compliance with January 2008 and February 2010 Board remands. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). The current record includes: corrective notice letters sent in February and April 2008; a comprehensive report of all VA treatment records; in-service hospital record confirming dose exposure of 4500 RAD; an advisory medical opinions on behalf of the Undersecretary for Health; a July 2012 VA gastrointestinal examination; and February 2012 radiation dose estimate review. The AOJ re-adjudicated the claim in October 2012. Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) have been satisfied. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Skin cancer is considered a radiogenic disease under 38 C.F.R. § 3.311(b)(2), but not under 38 C.F.R. § 3.309(d)(2). Moreover, skin cancer has not been demonstrated within a year of the Veteran's military service. Hence, presumptive service connection under 38 C.F.R. § 3.309 is not for further consideration. For the claimed digestive disability, it is not considered a radiogenic disease under 38 C.F.R. §§ 3.309, 3.311. However, the Veteran is not precluded from showing that either is directly due to or the result of in-service radiation treatment. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). 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). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although the Veteran is competent in certain situations to identify a simple condition such as digestive symptoms or skin disorders, he is not competent to provide evidence as to more complex medical questions such a cancer diagnosis. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between 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")). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Digestive disability A review of the Veteran's service treatment records reveals that the Veteran was diagnosed with cancer of the right testicle in November 1973. The testicle was removed later that month. From February to March 1974, the Veteran was hospitalized at Reese Air Force Base. He then underwent Cobalt-60 irradiation treatments at the Methodist Hospital in Lubbock, Texas. The amount of radiation dosage was 4500 RADs. Service treatment records also show that the Veteran complained about frequent indigestion and had an X-ray of his upper gastrointestinal system to rule out a peptic ulcer. The X-ray results were within normal limits. An undated service hospital record, following cancer treatment, notes that the Veteran did not have any history of a gastric disorder. The Veteran had a general VA examination in June 1976. He complained about nervous symptoms, insomnia, poor appetite, and fatigue. His digestive system was found to be normal. VA treatment records from April 1982 show that the Veteran had epigastric tenderness upon complaints of hyperventilating type symptoms. He was given Mylanta and Tagamet. VA treatment records dated in May and August 1986 show that the Veteran had gastric complaints. He was given Tagamet and Zantac for treatment. Assessments included gastroenteritis and probable peptic ulcer disease. In April 1990, the Veteran had a CT scan of his abdomen that returned within normal limits. The following June, he underwent a gastroscopy upon complaints of abdominal pain, early satiety, and heartburn. It revealed esophagitis and antritis. VA treatment notes beginning August 1990 reflect that the Veteran had developed gastroesophageal reflux disorder (GERD). A private esophagogastroduodenoscopy from January 1991 revealed mild duodenitis. No ulcerations were found. A VA intestine examination was taken in September 1994. The Veteran complained about daily reflux symptoms, nausea, constipation, diarrhea, and abdominal discomfort. Clinical examination was unremarkable. The examiner noted that the Veteran used aspirin on a frequent basis and noted the possibility of a nonsteroidal anti-inflammatory drug (NSAID) induced mucosal injury. He counseled the Veteran on the dangers of gastrointestinal irritation and kidney dysfunction due to frequent NSAID use. VA treatment records from March, April, and May 1995 reflect treatment for esophogitis. In June 1995, the Veteran started to assert that his gastrointestinal problems were due to in-service radiation exposure. VA treatment records from May 2001 reflect that the Veteran had a 20-year history of progressive irritable bowel syndrome (IBS). Treatment, including mediation and diet control, had been minimally beneficial. VA treatment records from May 2005 show that the Veteran complained about sporadic diarrhea and constipation. He was assessed as having irritable bowel syndrome (IBS). In his February 2006 substantive appeal, the Veteran asserted that his gastric problems were directly related to radiation therapy in service. Upper gastrointestinal study taken in November 2006 confirmed a tiny hiatal hernia and continued GERD. In March 2008 and December 2009, the Veteran reported that GERD and esophageal disorders continued to bother him and that they had their onset with his in-service radiation treatment. Notably, VA treatment records from April 2008 reflect a past medical history of gastroenteritis and colitis due to radiation. A September 2008 esophageal duodenoscopy was within normal limits. The examiner noted the chief compliant of choking sensation while ingesting liquids may be related to thyroid dysfunction or pharyngeal incoordination. She recommended a speech therapy consultation. The Veteran had a VA gastrointestinal examination in July 2009. The examiner reviewed the claims folder. She listed GERD as a current condition. The date of onset was unknown. The Veteran described a gradual worsening of heartburn, reflux symptoms for more than 10 years. It had been intermittent with remissions. The examiner gave a negative opinion. She cited an absence of medical studies showing the existence of radiation-induced GERD after searching several medical journals and data bases. In February 2012, the VA Director of the Post-911 Era Environmental Health Program reviewed the records and responded with a negative opinion. He cited clinical studies showing that the digestive tract for testicular cancer patients can tolerate much higher radiation doses than the amount given to the Veteran. He also noted that the radiation exposure to the Veteran's stomach was less than the exposure towards the pelvic region. In March 2012, the VA Director of Compensation Service issued an advisory opinion on behalf of the Under Secretary for Benefits. Following review of the record, he concluded that there was no reasonable possibility that the digestive disorder resulted from radiation exposure in service. VA reexamined the Veteran in July 2012. The examiner listed the Veteran as having GERD with an onset in 1974. He noted an upper endoscopy taken in 2004 confirmed GERD, but upper gastrointestinal X-ray in 2004 showed a normal barium swallow. He provided a negative opinion. He cited that the radiation treatment focused on his lower body instead of his upper gastrointestinal tract. He did not find evidence of any other in-service etiology. Service records document that the Veteran had in-service radiation treatment for testicular cancer with Cobalt-60 radiation therapy and dose exposure of 4500 RADs. An in-service event is established. Recent VA treatment records show that the Veteran had GERD. The threshold of a current digestive disability is met. The remaining issue is whether the current disability is traceable to military service, including radiation exposure. The Veteran is competent to describe his digestive symptoms. See Layno, 6 Vet. App. at 469; see Jandreau, 492 F.3d at 1377. However, determining whether his current disability is related to service, including radiation exposure approximately 40 years ago, is a medical question. He is not shown to be a medical professional and is not competent to express an opinion on such an issue. See Woehlaert, 21 Vet. App. 456; see also Waters, 601 F.3d 1274. Thus, his assertions are not competent evidence to show a nexus to service and in this regard, have no probative value. Id; see Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. The competent medical evidence weighs against finding a nexus. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). Here, the VA examination report from September 1994 suggests the Veteran's esophageal problems are related to frequent NSAID use. The July 2009 VA expressed a negative opinion based upon an absence of published medical studies indicating a relationship between radiation treatment and GERD. The February and March 2012 advisory opinions cited an absence of clinical studies to support a nexus. Most recently, the July 2012 VA examiner cited the radiation treatment being directed toward the pelvic region in support of his negative opinion. All of these opinions weigh against the claim. The current February 2012, March 2012, and July 2012 VA medical opinions were based upon a review of the record and are supported by plausible rationales that are consistent with the record. The Board considers these VA medical opinions to be probative and weigh against the claim. Nieves-Rodriguez, 22 Vet. App. at 304; see also King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). In other words, the preponderance of the evidence is against finding a nexus to military service, including radiation treatment for testicular cancer. For the reasons stated above, a nexus has not been demonstrated. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Service connection for digestive disability is not warranted. Skin cancer As noted above, the record shows that the Veteran received a cumulative radiation dose of 4500 RADs as part of testicular cancer treatment. Service treatment records are negative for any instance or suspicion for skin cancer. However, on his Report of Medical History for entrance into service, he acknowledged having skin diseases, which he described as moderate acne. No dermatological findings were made upon contemporaneous clinical examination. Service treatment records from March 1973 reflect findings of a recent exacerbation of acne. The available medical records show that the Veteran was initially treated for basal cell carcinoma (BCC) in August 1997. At that time VA treatment records include findings of BCC on his left malar region. No other suspicious lesions were found. It was removed the following month. In July and September 1999, VA treatment records show that the Veteran was assessed as having seborrhea, actinic keratosis, and BCC. He had a BCC growth removed from his left cheek. He revisited the VA dermatology clinic in September 2000. His chest and back were negative, but possible BCC recurrence was noted at the September 1999 excision site. In August 2001, he underwent cryotherapy to treat for actinic keratosis lesions. In February 2004, the Veteran reported that he had had 52 squamous cell carcinomas (SCC) and BCC lesions removed over the past several years. VA dermatology records from February 2004 reflect that the Veteran had a history of BCC on his face. He had two suspicious lesions on his right upper arm and left postauricular region. The examiner assessed possible recurrent BCC. VA treatment records from March 2005 show that the Veteran had a benign lesion on his left cheek. It was removed with liquid nitrogen. In September 2005, he was treated for actinic keratosis on the top of his head and a recurrent wart on his left index finger. At the October 2007 hearing, the Veteran stated that he had approximately 58 cancerous lesions. He believed it was related to in-service radiation treatment for testicular cancer. He reported that his treating physician also believed a nexus was evident. In March and May 2008, the Veteran reported that his skin problems were of a progressive nature and necessitated more aggressive treatment. VA primary care records from July 2011 show that the Veteran requested a dermatology consultation for lesions on his face, neck, and scalp. However, the August 2011 dermatology clinical examination was negative for skin rashes, suspicious lesions, or ulcerations. One lesion specifically identified by the Veteran was determined to be seborrheic keratosis. He was given liquid nitrogen therapy for actinic damage to his forehead. In February 2012, the VA Director of the Post-911 Era Environmental Health Program reviewed the records and responded with a negative opinion. He cited clinical studies showing a lack of clinical correlation for testicular cancer radiation treatment and subsequent skin cancer. The published study of 547 irradiated testicular cancer patients revealed that only 8 developed skin cancer and it was outside the irradiated pelvic region. In March 2012, the VA Director of Compensation Service issued an advisory opinion on behalf of the Under Secretary for Benefits. Based upon the February 2012 opinion, he concluded that there was no reasonable possibility that the BCC resulted from radiation exposure in service. Service records document that the Veteran had in-service radiation treatment for testicular cancer with Cobalt-60 radiation therapy and dose exposure of 4500 RADs. An in-service event is established. Recent VA treatment records show that the Veteran had various dermatological abnormalities to include BCC and SCC. The threshold of a current skin cancer disability is met. The remaining issue is whether the current skin cancers are traceable to military service, including radiation exposure. The Veteran is competent to describe his dermatological abnormalities. See Layno, 6 Vet. App. at 469; see Jandreau, 492 F.3d at 1377. However, determining whether his current skin cancers are related to service, including radiation exposure approximately 40 years ago is a medical question. He is not shown to be a medical professional and is not competent to express an opinion on such an issue. See Woehlaert, 21 Vet. App. 456; see also Waters, 601 F.3d 1274. Thus, his assertions are not competent evidence to show a nexus to service and in this regard, have no probative value. Id; see Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. The competent medical evidence weighs against finding a nexus. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). Here, the February and March 2012 advisory opinions cited an absence of clinical studies to support a nexus. These opinions weigh against the claim. The February and March 2012 medical opinions were based upon a review of the record and are supported by plausible explanations that are consistent with the record. They are uncontroverted by any additional medical opinion. Briefly, the Board notes that the Veteran has reported that a healthcare provider had informed him of a positive relationship, but such statements are not found in any of the medical records; nor has the Veteran provided further details about such an opinion. For these reasons, the Board considers the VA advisory medical opinions to be probative and weigh against the claim. Nieves-Rodriguez, 22 Vet. App. at 304; see also King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). In other words, the preponderance of the evidence is against finding a nexus to service, including radiation treatment for testicular cancer. For the reasons stated above, a nexus has not been demonstrated. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Service connection for skin cancer is not warranted. ORDER Service connection for a digestive disability is denied. Service connection for skin cancer is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs