Citation Nr: 1322945 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 12-33 145 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES 1. Propriety of the severance of service connection for actinic keratosis with lichenoid inflammation, effective February 1, 2013. 2. Propriety of the severance of service connection for scars resulting from actinic keratosis with lichenoid inflammation, effective February 1, 2013. 3. Entitlement to an initial rating in excess of 10 percent for early invasive squamous and basal cell carcinomas of the left side of the nose and left temple. 4. Entitlement to an initial compensable rating for scars resulting from early invasive squamous and basal cell carcinomas of the left thumb. 5. Entitlement to an initial compensable rating for scars resulting from early invasive squamous and basal cell carcinomas of the right forearm. 6. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) served on active duty from February 1954 to December 1957. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the RO in Lincoln, Nebraska, which, in pertinent part, continued a 20 percent rating for degenerative disc disease of the lumbar spine, from a December 2011 rating decision which granted service connection for squamous and basal cell carcinomas with scars, assigning initial 10 percent rating for the left side of the nose and left temple and noncompensable disability ratings for the left thumb and right forearm, and from a November 2012 rating decision severing service connection for actinic keratosis with scars. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The Board received evidence directly from the Veteran and his representative in March and May 2013, which do not address the severity of his squamous and basal cell carcinomas or the resulting scarring. As such, the evidence is not relevant, and the file need not be returned to the RO for initial consideration of the initial ratings for those disabilities. See 38 C.F.R. § 20.1304(c) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of the increased rating in excess of 20 percent for degenerative disc disease of the lumbar spine and an initial rating in excess of 10 percent for early invasive squamous and basal cell carcinomas of the left side of the nose and left temple, an initial compensable rating for scars resulting from early invasive squamous and basal cell carcinomas of the left thumb, and an initial compensable rating for scars resulting from early invasive squamous and basal cell carcinomas of the right forearm are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. By a December 2011 rating decision, the RO determined that service connection was warranted for actinic keratosis with lichenoid inflammation and resulting scars. 2. Service connection for actinic keratosis with lichenoid inflammation and resulting scars was severed in a November 2012 rating decision, effective February 1, 2013. 3. The evidence of record does not establish that the award of service connection for actinic keratosis with lichenoid inflammation and resulting scars was clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The criteria for restoration of service connection for actinic keratosis with lichenoid inflammation are met; the severance of the award of service connection for actinic keratosis with lichenoid inflammation was improper. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.105(d), 3.304 (2012). 2. The criteria for restoration of service connection for scars resulting from actinic keratosis with lichenoid inflammation are met; the severance of the award of service connection for scars resulting from actinic keratosis with lichenoid inflammation was improper. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.105(d), 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the severance of service connection appeals, the Board finds that any error related to the duties to notify or assist on the severance of service connection appeals is moot. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). Procedural Requirements for Severance of Service Connection Once service connection has been granted, it can be severed only where the evidence establishes that the grant is clearly and unmistakably erroneous (the burden being on the Government), and only where certain procedural safeguards have been met. Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Daniels v. Gober, 10 Vet. App. 474, 478 (1997). Severance of service connection based on any standard less than that set forth in 38 C.F.R. 3.105(d) is erroneous as a matter of law. Stallworth, 20 Vet. App. at 488; Graves v. Brown, 6 Vet. App. 166, 170 (1994). Any error in following severance procedure is moot because the Board concludes that severance was not appropriate on substantive grounds. Substantive Requirements for Severance of Service Connection 38 C.F.R. 3.105(d) contemplates consideration of evidence that post-dates the award of service connection and that VA is not limited to the law and the record that existed at the time of the original decision. Stallworth; see also Allen v. Nicholson, 21 Vet. App. 54, 59 (2007). The severance decision focuses not on whether the original decision was clearly erroneous but on whether the current evidence establishes that service connection is clearly erroneous." Id. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that, when called to the attention of reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would be manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). To warrant revision of a decision on the ground of clear and unmistakable error in a severance of service connection case, there must have been an error in the adjudication of the appeal that, had it not been made, would have manifestly changed the outcome, i.e., whether, based on the current evidence of record, a grant of service connection would be clearly and unmistakably erroneous. Stallworth. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this 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). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Propriety of Severance of Service Connection The RO proposed severance in an August 2012 rating decision and informed the Veteran of the opportunity to submit additional evidence in support of service connection in that same month. Service connection was then severed in a November 2012 decision, effective February 1, 2013. The evidence at the time of the December 2011 grant of service connection and the November 2012 severance decision established the current disability of actinic keratosis and an in-service injury event comprised of exposure to ionizing radiation. There was, and is, no dispute as to these facts. VA has listed "radiogenic" diseases under 38 C.F.R. § 3.311(b)(2), which may be the result of ionizing radiation and may be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service. This list does not include actinic keratosis or the residuals of actinic keratosis. Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311(b)(4). When it has been determined that: (1) a Veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, or other activities as claimed; (2) the Veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). In this case, the Veteran was found to have been exposed to ionizing radiation as a result of participation in Operation Wigwam in 1955. A dose estimate was prepared and is of record. The December 2011 grant of service connection was based on an October 2011 nexus opinion from the VA Director of Environmental Agents Service regarding the effects of the Veteran's demonstrated in-service ionizing radiation exposure. Service connection for scars resulting from treatment for actinic keratosis was granted under 38 C.F.R. § 3.310 (2012). After the grant of service connection, the RO discovered that the October 2011 nexus opinion did not address actinic keratosis with lichenoid inflammation. The claims file was forwarded to the office of the Director of the Compensation Service. The Director issued a July 2012 letter that service connection should not have been awarded because actinic keratosis were not on the 38 C.F.R. § 3.311(b) list. At that time, the claims file did not otherwise include any scientific or medical evidence that actinic keratosis may be considered radiogenic. The letter indicated that, in the absence of a medical opinion attributing the actinic keratosis to ionizing radiation, routing the claim for a medical opinion was not necessary. See 38 C.F.R. § 3.311(e). The RO proposed severance in an August 2012 rating decision and informed the Veteran of the opportunity to submit additional evidence in support of service connection. In response, the Veteran obtained an October 2012 letter from his private family physician that his skin lesions may well have been due to his ionizing radiation exposure during service. The examiner indicated that the Veteran's skin was examined and noted the presence of areas of both skin cancer and atypical actinic keratosis, a precancerous lesion of the skin. The RO severed service connection in November 2012, effective February 1, 2013. The RO found that October 2012 opinion did not clearly indicate whether the skin lesions referred to are actinic keratosis with lichenoid inflammation and, if it was referring to actinic keratosis, the opinion did not provide sufficient reasons and bases for the conclusions reached. The RO concluded that the October 2012 opinion would not have been sufficient to award of service connection and determinate that severance was warranted. As stated above, the question in severance of service connection cases is whether the current evidence establishes that service connection is clearly erroneous, not whether a later review of the evidence would be sufficient to award service connection. Stallworth. The Veteran has not contended and the record does not otherwise show that he is a medical expert. He is only competent to offer lay evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). To the extent that he could provide competent lay evidence, it would be in the form of a statement that a doctor told him that actinic keratosis were related to ionizing radiation exposure. Id. He has only submitted the October 2012 letter from his doctor. His other statements reference skin cancers and sunburns during service, but not actinic keratosis. His statements are not competent evidence of nexus with regard to the actinic keratosis with lichenoid inflammation disability. The October 2011 nexus opinion from the VA Director of Environmental Agents Service did not address actinic keratosis with lichenoid inflammation; thus, it is not relevant. The July 2012 letter from the Director of the Compensation Service is not actually relevant evidence. The letter observes correctly that actinic keratosis do not appear on the 38 C.F.R. § 3.311(b) list. The July 2012 letter was correct in noting that no competent scientific or medical evidence was in the claims file linking ionizing radiation exposure to actinic keratosis at that time. The July 2012 letter does not, in and of itself, provide any statement that tends to make a nexus between actinic keratosis with lichenoid inflammation and ionizing radiation more or less probable. See Fed. R. Evid. 401 (setting out the test for relevant evidence). Thus, it is not relevant evidence that weighs for or against service connection. The October 2012 letter from the Veteran's private doctor was competent medical evidence and that evidence linked actinic keratosis with lichenoid inflammation to ionizing radiation exposure. The examiner identified areas with lesions both identified as skin cancer and atypical actinic keratosis, precancerous lesions of the skin and related without any qualification the skin lesions to exposure to radiation. In severance of service connection, service connection must be clearly erroneous. In a case such as this, where there is only one piece of relevant, competent evidence of nexus between the skin lesions, including those identified as actinic keratosis and the proven in-service radiation exposure and that piece of evidence indicates that they may be related, the Board cannot conclude that service connection is clearly erroneous. That letter may not have been in language that would allow for a grant of service connection under the equipoise standard. See Obert. However, equipoise is the wrong standard to apply in severance cases. See Stallworth. The Board concludes that severance of service connection for actinic keratosis with lichenoid inflammation was improper. See id. Restoration of service connection for actinic keratosis with lichenoid inflammation is warranted, effective February 1, 2013. Service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310. The Veteran's scars were awarded service connection solely on a secondary basis from actinic keratosis with lichenoid inflammation. The November 2012 severance of service connection for the scars was predicated on severance of service connection for actinic keratosis with lichenoid inflammation. Restoration of service connection of scars resulting from actinic keratosis with lichenoid inflammation is warranted because restoration of service connection for actinic keratosis with lichenoid inflammation is warranted, effective February 1, 2013. See Stallworth. ORDER Severance of service connection for actinic keratosis with lichenoid inflammation is improper. Restoration of service connection for actinic keratosis, effective February 1, 2013, is granted. Severance of service connection for scars resulting from actinic keratosis with lichenoid inflammation is improper. Restoration of service connection for scars resulting from actinic keratosis with lichenoid inflammation, effective February 1, 2013, is granted. REMAND The Board must remand the remaining increased and initial ratings issues on appeal for additional development. Increased Rating for Degenerative Disc Disease The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. See 38 C.F.R. § 3.327(a) (2012). The Veteran indicated in his April 2012 Notice of Disagreement that his service connected lumbar spine degenerative disc disease had worsened, with increasing aches and pains and radiating pain down his left leg. The Board notes that his last VA examination in connection with his claim was in November 2010. As he was last afforded an examination more than a year before his allegation of worsening symptoms, the Board finds that an additional evaluation is necessary in resolving the issues raised by the instant appeal. See id. The Board observes that the Veteran has been receiving treatment from VA on an ongoing basis. The records on file reflect treatment only through December 2012. To correctly assess the Veteran's current disability, all records of treatment from December 2012 to the present must be considered. Therefore, those records must be obtained for the file. Initial Rating for Squamous and Basal Cell Carcinomas of the Left Side of the Nose and Left Temple The RO assigned an initial 10 percent rating based on scarring of the left side of the nose and left temple resulting from prior carcinoma removal at those locations. The Veteran's VA treatment records show prior removal of squamous cell carcinoma on both the left and right pinna (auricles or ears) in May 2006. The Veteran's ears were not evaluated for residual scars during the April 2012 VA examination of record. The instructions provided to the examiner concerned only the left side of the nose and left temple. No photographs of the ears were provided to support a finding that no additional scarring of the ears was present. As scarring of the ears is a component of the initial rating under Diagnostic Code 7800, the Board remands for a VA examination which evaluates the left and right ears for residuals of prior squamous cell carcinoma removal. Initial Ratings for Squamous and Basal Cell Carcinomas and Scarring of the Left Thumb and Right Forearm The Veteran's representative argues and the Board agrees that the Veteran's VA treatment records show a worsening of his condition since his April 2012 VA examination in connection with the left thumb and right forearm claim. In August 2012, the Veteran was evaluated by the VA dermatology service. He was provided a biopsy in September 2012 which found squamous cell carcinoma present in both the dorsum of the left hand and on the right forearm. An October 2012 letter from a surgeon states that the carcinomas had been excised completely. This raises the possibility that the area of involvement has changed. Area of involvement is part of the ratings criteria under Diagnostic Codes 7801 and 7802. The Board must remand for a current VA examination to determine the extent of the scarring. See 38 C.F.R. § 3.327(a). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain the Veteran's VA treatment records for treatment concerning his service-connected disabilities from December 2012 to the present. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 2. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of his lumbar spine degenerative disc disease. Any tests deemed necessary should be conducted, any necessary consultations should be completed, and all clinical findings should be reported in detail. The examiner must review the Veteran's claims file and must explain the complete rationale for all opinions expressed and conclusions reached. The examiner is asked to describe orthopedic effects of the service-connected lumbar spine degenerative disc disease including the range of motion of the thoracolumbar spine and any functional loss due to pain or painful motion (supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion) as well as weakness, excess fatigability, incoordination or pain on movement. Any additional functional loss should be expressed in terms of additional limitation of motion, if possible. The examiner should also indicate whether the Veteran experiences any neurological impairment, to include any radiculopathy or problems with bowel or bladder control, resulting from his thoracolumbar spine disability. If such neurological impairment exists, the nature and severity of it should be described in detail. The examiner must also not the presence, length, and severity of any incapacitating episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 3. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his squamous and basal cell carcinoma of the head, left thumb, and right forearm and residuals of treatment for squamous and basal cell carcinomas. Sufficient evaluations should be scheduled to evaluate the Veteran's symptomatology. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should provide specific findings as to whether the Veteran has residuals of squamous and basal cell carcinomas of the left and right ears. Color photographs should be included with the examination report. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. 4. Then, the RO should readjudicate the claims on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2012). 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs