Citation Nr: 1324928	
Decision Date: 08/06/13    Archive Date: 08/13/13

DOCKET NO.  07-33 475	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for skin cancer, to include as due to Agent Orange exposure. 

2.  Entitlement to service connection for hypertension, to include as due to Agent Orange exposure. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Carole Kammel, Counsel



INTRODUCTION

The Veteran served on active duty from September 1966 to June 1969, to include service in the Republic of Vietnam (RVN).

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the RO in Nashville, Tennessee.  By that rating action, wherein the RO declined to reopen a previously denied claim for service connection for hypertension.  The RO also denied service connection for skin cancer.  The Veteran appealed this rating action to the Board. 

In a September 2011 decision, the Board reopened the previously denied claim for service connection for hypertension.  The Board remanded the underlying de novo claim for service connection for hypertension, as well as the claim for service connection for skin cancer, to the RO for additional development.  These matters have returned to the Board for further appellate review. 

The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Basal cell carcinoma was first shown many years following service discharge, is not related to presumed exposure to herbicide agents in service, and is not otherwise shown to be attributable to active military service. 







CONCLUSION OF LAW

The criteria for entitlement to service connection for skin cancer, to include as due to Agent Orange exposure, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.  

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified via an April 2007 letter of the criteria for establishing his service connection claim, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in June 2007.  Nothing more was required. 

VA has also fulfilled its duty to assist the Veteran with respect to his claim for service connection for skin cancer, to include as due to Agent Orange exposure.  The RO has obtained the Veteran's service treatment records (STRs) and VA and private outpatient treatment and examination records.   The Veteran has presented written arguments in various documents submitted to VA in support of the above-cited claim.  

The Veteran was not provided with an examination to obtain a medical nexus opinion with regard to his claim for service connection for skin cancer, to include as due to Agent Orange exposure.  The Board finds none is necessary as the standards of McClendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met in this case to require scheduling VA examinations for medical nexus opinions.  See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4) indicating the possibility that these disabilities are related to the Veteran's short period of military service. Specifically, and as will be explained in more detail below, the evidence does not indicate that skin cancer was shown in service or shortly following discharge from service.  There is also no indication that the Veteran's basal cell carcinoma (claimed as skin cancer) is etiologically related to service, to include the Veteran's presumed exposure to Agent Orange in the RVN.  Hence, a remand for an opinion is not necessary to decide this claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (VA is not obligated to provide an examination for a medical nexus opinion where the supporting evidence of record consists only of unsubstantiated lay allegations establishing the required association between this current disability and service.) 

Finally, as noted above, this appeal was remanded by the Board in September 2011 for further development.  Specifically, the Board instructed the RO, in part, to outstanding VA treatment records from the VA Medical Center (VAMC) in Mountain Home, dated from March 2007 to the present, as well as any records from private physicians from whom the Veteran might have received treatment for skin cancer since service discharge.  Pursuant to these directives, treatment records, dated from March to December 2007, from the above-cited VAMC, as well as records, dated from April 1996 to August 2011, prepared and submitted by Dermatology Associates, have been obtained and associated with the Veteran's physical claims files.  The Board is now satisfied there was substantial compliance with its September 2011 remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to the service connection issue decided herein. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

II.  Service connection-general criteria

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§ 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection may also be granted for certain chronic diseases, such as malignant tumors, when such disease is manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). 

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b).  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id.  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Id.  For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b)  is limited to a chronic disease listed at 38 C.F.R. § 3.309(a) ).  A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed.  Id.  As the Veteran has been diagnosed with skin cancer, the tenets of 3.303(b) have been invoked with respect to the claim for service connection for skin cancer, to include as due to Agent Orange exposure.

If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue.  38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102.  On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365.

Agent Orange

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1974, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6)(iii) (2012). 

According to the Veteran's service treatment records, the Veteran served in the RVN.  See October 1967 STR, showing that the Veteran had received medical treatment at the 1-77th Artillery Aid Station in the RVN.  He is therefore presumed to have been exposed to herbicide agents, such as Agent Orange.  

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: AL Amyloidosis; Chloracne or other acneform disease consistent with chloracne; Type 2 Diabetes; Hodgkin's disease; all chronic B-cell leukemias; 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); ischemic heart disease; Parkinson's disease; hairy cell leukemia and other chronic B-cell leukemias; and, soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  The terms "soft tissue sarcoma" includes malignant schwannoma.  38 C.F.R. § 3.309(e) and Note (1). 

The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which a veteran was exposed to an herbicide agent during active military, naval, or air service.  38 C.F.R. § 3.307(a)(6)(ii). 

However, VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted.  See 59 Fed. Reg. 341 -46 (Jan. 4, 1994); see also 61 Fed. Reg. 57,586 -57,589 (Nov. 7, 1996); 72 Fed. Reg. 32,345  -32,407 (June 12, 2007).  The Veteran's claimed skin disability, basal cell carcinoma, is not listed among the presumptive diseases for which service connection may be granted on the basis of exposure to herbicides under 38 C.F.R. § 3.309(e).  The private and VA medical evidence also fails to show that he has a skin disability, such as chloracne or other acneform disease consistent with chloracne, that would allow him to avail himself of the above-cited Agent Orange presumptions.  

In the absence of a diagnosed disease for which the Agent Orange presumption applies, 38 C.F.R. § 3.307(a)(6)(iii) is not applicable.  The Veteran's claim of service connection for skin cancer (basal cell carcinoma) can be asserted on a direct service connection basis.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 

Direct Service Connection

The Board has also considered the Veteran's contentions, but finds that the preponderance of the evidence is against the claim for service connection for skin cancer, to include as due to Agent Orange exposure on a direct incurrence basis.  

Aside from treatment that the Veteran received in May 1967 for sores on the lips, service treatment records are silent for any reports or physical examination findings of skin cancer.  A June 1969 service separation examination report reflects that the Veteran's skin was evaluated as normal.  On an accompanying Report of Medical History, he denied having had skin diseases.  The Veteran indicated that he was in good health.  There is also no evidence that the Veteran was diagnosed as having any form of skin cancer until the 1980s.  In other words, there is no basis for establishing service connection on a direct (3.303(a)) or presumptive basis (3.307, 3.309(a)). 

There is likewise no competent evidence to support any claim of continuity of skin cancer symptomatology since service discharge.  Rather, the weight of the evidence reveals that skin cancer was not manifest until the late 1980s, many years following service discharge in 1969.  See April 1996 report, prepared by Dermatology Associates, reflecting that the Veteran had had basal cell carcinoma cut out of his eyebrow 10 years previously (1986).  It has been held that such a lengthy lapse of time between the alleged events in service and the initial manifestation of relevant symptoms after service is a factor for consideration in deciding a service connection claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  Moreover, while skin symptoms are readily observable by a lay person, skin cancer (basal cell carcinoma) is not readily amenable to lay diagnosis or comment on etiology, in contrast with other conditions within the realm of lay observation and experience (e.g., a separated shoulder or broken arm, varicose veins, tinnitus (ringing in the ears), or pes planus (flat feet), etc.). See Colantonio v. Shinseki, No. 2009-7067 (Fed. Cir. Jun. 1, 2010), citing Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with his service).  Service connection for skin cancer based on continuity of symptomatology is thereby not warranted.

Finally, the Veteran has not submitted any medical evidence of a nexus between his skin disability, recently found by physicians at Dermatology Associates in February 2010 and October 2011 to be manifested by basal cell carcinoma of the left superior dorsal nose and left inferior helix, respectively, and his period of active military service, to include his presumed exposure to Agent Orange.  The record is simply absent a competent positive opinion of this nature.  

Again, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, skin cancer, including basal cell carcinoma, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  The Board emphasizes that the Federal Circuit specifically held cancer (basal cell carcinoma) is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that a skin biopsy and other specific findings is needed to properly assess and diagnose the disorder.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). 

That is, although the Board readily acknowledges that Veteran is competent to report skin symptoms such as rashes and scabs, there is no indication that the Veteran is competent to etiologically link these reported symptoms to his basal cell carcinoma, diagnosed several years after his discharge, or to link his current diagnosis of basal cell carcinoma to his presumed exposure to herbicide agents.  The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation.  Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating skin disorders.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012).  Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value.

As noted previously herein, pursuant to the Board's September 2011 remand directives, the Veteran was provided an ample opportunity to secure medical evidence in his favor and submit the same to VA, but he failed to do so.  See 38 U.S.C.A. § 5107(a) (West 2002) [it is a claimant's responsibility to support a claim for VA benefits]. 

The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the claim, this doctrine is not for application.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 


ORDER

Service connection for skin cancer, to include as due to Agent Orange exposure, is denied. 






(CONTINUED NEXT PAGE)

REMAND

Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claim  for service connection for hypertension, to include as due to Agent Orange exposure so that he is afforded every possible consideration. 

The Board finds that this appeal must be remanded to obtain an adequate examination that complies with the directives of the Board's September 2011 remand directives.  The United States Court of Veterans Appeals (Court) or Board remand confers upon the appellant the right to compliance with that order.  Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105   (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand).  

When the matter was before the Board in September 2011, the Board directed the RO, in part, to schedule the Veteran for a VA examination, "preferably by a cardiologist," to determine the current nature and etiology of any cardiovascular disorder.  The November 2011 VA cardiologist's opinion is inadequate to rate the claim for service connection for hypertension.  The Board requested that the examiner provide an opinion (with respect to any current cardiovascular disorder identified) whether there was "clear and unmistakable (obvious and manifest, "'unbeatable'") medical evidence" that any of the Veteran's current cardiovascular disorders, to include, in part, hypertension, had existed prior to service entrance and if so, if there was clear and unmistakable evidence that the disability did not increase in severity beyond its natural progression therein.  The examiner failed to answer those specific questions, which were set out in the necessary vernacular to properly address the issue.  The rationale for other aspects of the opinion was also deficient.

Given the evidence and the necessary considerations for proper analysis of the claim for service connection for hypertension, to include as due to Agent Orange exposure, the Board finds that additional development of the record, particularly an examination of the Veteran that addresses the proper standard for claims based on an aggravation theory and those claimed as due to Agent Orange exposure, is required pursuant to Stegall, supra. 

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination, preferably by a cardiologist, to determine the current nature and etiology of any cardiovascular disorder(s) found on examination.  The claims file should be reviewed by the examiner and that review should be indicated in the report. 
   
The examiner should specifically address, with respect to each diagnosed cardiovascular disability diagnosed on examination, the following questions:
   
(i) Did the disability clearly and unmistakably (i.e., obvious or manifest) preexist the Veteran entrance into military service in September 1966? 
   
(ii) If the disability is found to have clearly and unmistakably preexisted the Veteran's entrance into military service in September 1966, is there clear and unmistakable evidence that the disability did not increase in severity beyond its natural progression during active service? 
   
In answering questions i-ii, the examiner is hereby notified to use the clear and unmistakable standard where requested.

(iii) If the disability is not found to have clearly and unmistakably preexisted the Veteran's entrance into military service in September 1966, is it as least as likely as not (50 percent probability or greater) that the disability otherwise had its onset in military service or is etiologically related thereto, to include the Veteran's heat exposure and presumed in-service exposure to Agent Orange?    

The examiner should specifically consider the service and post-service treatment records, together with all the other evidence of record in responding to the questions listed above. In answering the requested questions, the VA examiner is requested to comment on an October 1967 service treatment record, reflecting that the Veteran had complained of a hot feeling of the face and upper trunk.
   
The rationale for all opinions expressed should be provided.  If the examiner cannot provide a requested opinion without resorting to mere speculation, s/he should so indicate and explain the factors that prevent him/her from offering the opinion.
   
2.  After the development requested has been completed, the AMC/RO should review the examiner's report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner has documented his or her review of all pertinent records in the claims file, to include any records uploaded to Virtual VA.  If any report is deficient in any manner, the AMC/RO must implement corrective procedures at once.
   
3.  After the above actions have been completed, readjudicate the Veteran's claim for service connection for hypertension, to include as due to Agent Orange exposure.  If the claim remains denied, issue the Veteran and his representative a supplemental statement of the case, and afford him the appropriate period of time within which to respond thereto.
   
The Veteran has the right to submit additional evidence and argument on the matter 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).




______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs