Citation Nr: 1324815 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 07-33 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for skin cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran served on active duty from April 1965 to January 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board issued a decision denying this appeal in June 2009. In February 2010, the United States Court of Appeals for Veterans Claims (Court) vacated the part of the Board's decision that denied service connection for skin cancer. The Board remanded the claim in February 2011 and April 2012 for additional development. A review of the record shows that the RO has complied with all remand instructions by affording the Veteran VA examinations and issuing supplemental statements of the case. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran presented testimony at a hearing before the Board at the RO in April 2009. A transcript of the hearing is associated with the Veteran's claims folder. FINDING OF FACT Skin was not manifested during the Veteran's active duty service or for many years thereafter, nor is skin cancer otherwise related to such service cancer, to include as due to herbicide exposure. CONCLUSION OF LAW Skin cancer was not incurred in or aggravated by service, nor may it presumed to have been incurred or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 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 pre-adjudication notice by a letter dated in November 2006. The RO provided the appellant with additional notice in November 2007, subsequent to the initial adjudication. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) 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. While the November 2007 notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in November 2008, February 2012 and November 2012 supplemental statements of the case, following the provision of notice in November 2007. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, 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 VA has obtained service and VA treatment records; reviewed his Virtual VA file; assisted the Veteran in obtaining evidence; afforded the Veteran VA examinations in March 2011 and June 2012; obtained an April 2013 medical expert opinion; and afforded the Veteran the opportunity to give testimony before the Board at the RO in April 2009. The Board acknowledges that the Veteran is in receipt of Social Security Administration (SSA) benefits. However, it appears to the Board that he was awarded based on a disability not before the Board-multiple sclerosis. Thus, additional development is not necessary. In May 2013, the RO provided the Veteran a copy of the medical expert opinion, and advised him that he had 60 days from the date of the letter to review the opinion and submit additional evidence/argument. The representative subsequently submitted a June 2013 statement. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations The issue before the Board involves a claim of entitlement to service connection for skin cancer. 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 suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 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). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignant 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, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). 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, the following 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 further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; Type II diabetes mellitus; Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemia; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 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, 75 Fed. Reg. 81,332. The Secretary has 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 skin cancer. See Id. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 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. 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. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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 v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). Analysis Service treatment records are silent for any complaints of, treatments for, or diagnosis of skin cancer. Clinical evaluation of the skin was normal and no skin cancer was indicated. Additionally, in his contemporaneous medical history, the Veteran himself checked the appropriate box to deny a past/current history of skin diseases, but did confirm a past/current history of other disorders (mumps and car/train/sea/air sickness). The Veteran testified that he conducted combat operations as a door gunner. He also testified that some of the areas in which he landed were barren and defoliated parts of the jungle. He stated that he ignored the problems with his skin (bumps, rashes, etc.) for a couple years after service. The Veteran testified that he was first treated in the mid 1970s. He currently undergoes full body examinations in which the examiner (Dr. M.K.) finds spots and freezes them with a bottle of liquid nitrogen. Most of the time, the disability manifests itself on his upper body with symptoms of itchiness, crustiness, and oozing. The claims file shows various diagnoses for skin disorders, described as lesions, keratoses, and a 1993 pathology report showing lentigo maligna (melanoma in-situ). However, there is no persuasive evidence suggesting a nexus between any of the reported skin disorders and service. The Veteran is certainly competent to testify as to symptoms of skin cancer. However, when given the opportunity to report it on a report of medical history upon separating from service, he denied any symptoms of it and instead reported other disorders. Moreover, military personnel at the time did not clinically evaluate his skin as abnormal, The Veteran's wife testified that she first noticed his skin disability in 1977. While not determinative by itself, this is approximately 10 years after service. This lengthy period without complaint or treatment after service also suggests that there has not been a continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). It appears that the Veteran's contention is that his skin disability is related to exposure to herbicides. Based on the Veteran's service in Vietnam, his exposure to Agent Orange is presumed. However, none of the reported skin disorders are listed as a disease subject to presumptive service connection pursuant to § 3.307(a)(6). The presumption is therefore not applicable. With regard to the 1993 report of lentigo maligna (melanoma in-situ), assuming for the sake of argument that the medical evidence shows this to be a cancer, this was shown well beyond the one-year presumptive period for malignant tumors. Regardless of any presumptive provisions, it may nevertheless be shown that there is a direct nexus between any current disability and service. However, in this case there is a no evidence of the claimed skin disorder during service or for a number of years thereafter. Significantly, the Veteran expressly denied skin diseases, tumors, growth, cysts, and cancer at the time of his separation examination in January 1967, and his skin was clinically evaluated as normal at that time. He was seen for plantar warts during service in November 1966, but this does not appear to be in any manner connected with the skin lesions he is claiming as skin cancer in connection with his claim. Moreover, there is an April 2007 VA treatment report in which a Dr. M.K. diagnosed the Veteran with actinic keratoses. Dr. M.K. also stated that "I advised patient that these lesions are related to sun exposure and that it is not related to Agent Orange exposure.... We see this as a common problem, in many patients, who have not had any protection from the sun in their younger years." The Veteran was afforded a VA examination in March 2011. After interviewing and examining the Veteran, and reviewing his claims file, the VA examiner provided a negative nexus opinion and noted that there was "no evidence of skin conditions in service" and the separation examination was negative for any skin disorders. The Board remanded the claim as a rationale was not provided to support the opinion regarding a link between the Veteran's skin disability and presumed exposure to Agent Orange. The Veteran was afforded another VA examination in June 2012. After interviewing and examining the Veteran, and reviewing his claims file, the VA examiner diagnosed lentigo maligna and opined that is less likely than not that it is due to or the result of the Veteran's service. He explained that the Veteran had no in-service treatment, and that discharge history and examination were negative for any skin disability. He further noted that the Veteran did not seek treatment for over 20 years post service. He additionally noted that the Veteran was seen on several occasions with no findings of Agent Orange associated disabilities. He stated that lentigo maligna is not listed as known consequence or disability aggravated by exposure to Agent Orange. However, because the June 2012 VA medical opinion is not clear as to whether the examiner offered a negative opinion because the Veteran's skin disorder is not listed in the regulation, the Board sought an expert medical opinion in February 2013. In April 2013, a medical expert reviewed the Veteran's claims file and opined that it is less likely as not that the Veteran's diagnosed skin disorder of lentigo maligna is casually related to herbicide exposure during active duty service. The examiner noted that skin melanoma/lentigo melanoma has not been listed among the skin conditions or cancers associated with Agent Orange exposure. It was noted that this diminishes the possibility of a nexus, although it does not discard it. The examiner further noted that there is no evidence-based data or research-based medical treatise in the literature that could be used as reliable evidence to support a relationship between exposure to herbicide Agent Orange and skin melanoma. The examiner noted that this reduced the possibility of a link between both, but does not discard it completely. The examiner also cited to the Veteran's non-military related risk factors for developing skin cancer: family history of skin melanoma (brother), fair skin and potential post-military sun exposure for 26 years after military service. It was additionally noted that current available evidence is not enough to support a direct nexus between exposure to Agent Orange and Lentigo melanoma. In a June 2013 statement, the Veteran's representative noted that a peer review study addressed the link between melanoma and herbicide exposure in US Air Force Vietnam veterans. The representative noted that it was determined that there was an association between cancer and dioxin exposure. The Board notes that the article does not show a direct relationship between the Veteran's skin disability to herbicide exposure. See Sacks v. West, 11 Vet. App. 314, 316 (1998). The opinions of medical examiners based on examination of the Veteran and review of his claims file reflect no link between the Veteran's skin cancer and herbicide exposure. The Board acknowledges the Veteran's assertion that skin cancer is caused by Agent Orange exposure in service. While the Veteran is competent to report symptoms of skin cancer, he is not competent to render a diagnosis or a nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, there is not a showing of a continuity of symptoms to otherwise link his skin cancer to service. The evidence leads to the conclusion that the skin disorder developed after service. After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs