Citation Nr: 1326849 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-14 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for skin cancer, to include as due to exposure to herbicides. 2. Entitlement to an initial posttraumatic stress disorder (PTSD) evaluation higher than 10 percent, prior to May 25, 2007, and higher than 30 percent thereafter. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to May 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal of a rating decisions in June 2009 (skin cancer) and March 2011 (PTSD) of a Department of Veterans Affairs (VA) Regional Office (RO). In its June 2009 rating decision, the issue of service connection for skin cancer was characterized as skin cancer of the left arm. Following an objection from the Veteran, the issue was re-characterized as entitlement to service connection for skin cancer of the left wrist, nose, right cheek, behind the ears, and left arm as a result of exposure to herbicides. If a Veteran claims service connection for a specific disorder, any disorder reasonably encompassed by the Veteran's claim must be considered. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the issue has been re-characterized again so that skin cancer as a whole is considered. Procedurally, in the March 2011 VA decision, the RO granted service connection for PTSD with dysthymic disorder with a 10 percent disability rating effective May 24, 2007. The Veteran submitted a notice of disagreement with this rating and, in August 2011, his disability rating was increased to 30 percent, effective May 25, 2011, the Veteran asserts that his symptoms warrant a higher disability rating. The issue of entitlement to an initial posttraumatic stress disorder (PTSD) evaluation higher than 10 percent, prior to May 25, 2007, and higher than 30 percent thereafter 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 Skin cancer was not first manifested during active duty service or within the first post-service year; the preponderance of the competent evidence of record is against a finding that the disease is related to service or to in-service exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for skin cancer have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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. A May 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in an April 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. 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). The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Of note, the Veteran is shown to have reported that he received private treatment for his skin cancer in a September 2005 VA treatment note. However, following a request for contact information for any and all medical providers, in January 2009 the Veteran stated that he only received treatment from the VA medical center. The duty to assist has been fulfilled. 38 C.F.R. § 3.159 (c)(1); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran has not been afforded a VA examination to determine the nature and etiology of his skin cancer. However, a VA examination or opinion is deemed necessary only if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that the Veteran suffered an event, injury, or disease in service; (c) indicates that the claimed disability or symptoms may be associated with the Veteran's service or other service-connected disability, and (d) does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006). The requirement to examine the Veteran is not triggered as the evidence of record does not meet these initial evidentiary thresholds. There is no indication in the record that any additional evidence unaddressed above, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection Laws and Regulations Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered, or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Malignant tumors, of any body system or part, are presumptive conditions. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). Additionally, certain listed diseases are subject to presumptive service connection for herbicide exposed Veterans. Skin conditions must manifest within one year of the last exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6); 3.309(e). Exposure to herbicides, including Agent Orange, is presumed for Veterans who served in Vietnam between January 9, 1962, and May 7, 1975. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Analysis The Veteran served in Vietnam in 1970; he is therefore presumed to have been exposed to herbicides. Moreover, diagnoses of basal and squamous cell carcinoma is well established in VA medical records. The sole remaining question, then, involves a nexus between the current disease and service. Presumptive service connection, either as a chronic disease or based on herbicide exposure, is not applicable as a skin disability is not shown by the evidence of record to have manifested within a year of service. A Veteran may still establish that a current disability is directly related to service, however, either through showing the disease was first manifested on active duty, or by establishing a factual link between the diagnosis and herbicide exposure in service. A negative inference is not drawn from the fact that a condition is not listed as presumptive. Service treatment records reveal no treatment for or complaints related to skin cancer in service. His May 1970 separation physical shows no abnormalities, nor did the Veteran register subjective complaints during service regarding any skin disorder whatsoever. In a September 2000 statement, the Veteran described a number of medical complaints which he related to his service. Skin cancer was not noted. An October 2000 private treatment record includes the Veteran's medical history. A number of physical complaints are noted, as is a lung operation. Skin cancer is not reported. The Veteran noted a history of skin cancer during a July 2004 VA medical center assessment. It was noted that he had skin cancer removed on three occasions from his nose, left cheek and ear. A March 2006 VA medical center treatment record noted a diagnosis of basal cell carcinoma. A November 2008 dermatology note reported that the Veteran had a history of multiple non-melanoma skin cancers. The treating physician reported that the Veteran was a truck driver who got sun exposure during work and did not wear sunscreen. The pathological review demonstrated that the Veteran had a shave biopsy of squamous cell carcinoma in November 2005, and a shave biopsy and excision of basal cell carcinoma in February 2006. In a December 2010 Agent Orange registry examination report, it was noted that between 2000 and 2008, the Veteran had six to seven basal cell and squamous cell skin cancers removed from his face, neck and around his ears. Among the post-examination diagnoses were "possible exposure to toxic herbicides," and "status post resection recurrent basal cell and squamous cell cancers." In his April 2011 VA-9 substantive appeal, the Veteran explained that he disagreed with the RO's finding that his skin cancer was not related to his Agent Orange exposure. He noted that he did not have skin cancer before service and, based upon his "Agent Orange physical," he was diagnosed with skin cancer due to Agent Orange. The evidence does not demonstrate an incurrence of skin cancer in service or for decades thereafter. The Veteran's service treatment records are wholly silent as to a diagnosis of any skin disability. Moreover, the evidence indicates that, before 2000, the Veteran had no complaints or diagnosis of skin cancer. This is demonstrated by the Veteran's reports that he had surgery for cancer between 2000 and 2008. Further supporting this conclusion is the fact that in both the Veteran's September 2000 claim and November 2000 examination make no mention of skin cancer whatsoever. A competent medical nexus linking the Veteran's service to his skin cancer is not demonstrated. As a lay person, the Veteran is competent to report on that which he has personal knowledge. The Veteran is not, however, competent to demonstrate a link between his service and his diagnosis of skin cancer several decades later as he is not shown to have any medical expertise and as this is not a disease capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) Despite the Veteran's claim that his Agent Orange registry examination establishes that skin cancer was due to exposure to herbicides, that examination merely notes the possibility of exposure to herbicides. The examination distinctly- and separately- provides diagnoses of basal cell and squamous cell carcinoma. The medical evidence is wholly silent as to any relationship between the Veteran's skin cancers and service. Moreover, the Veteran's treating dermatologist found in December 2008, that the Veteran had sun exposure during his work as a truck driver and that he did not wear sunscreen, indicating a link between the Veteran's post-service sun exposure and skin cancer. A current disability is clearly demonstrated by the evidence of record. The record does not demonstrate an in-service incurrence of skin cancer or any competent nexus linking skin cancer with service. The required elements to establish service connection are not shown. The preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved; and service connection is not warranted. ORDER Entitlement to service connection for skin cancer, to include as due to exposure to herbicides, is denied. REMAND In December 2011 the Veteran submitted a notice of disagreement with the initial rating for PTSD. The RO was then obligated to furnish him a statement of the case (SOC), which was not done. See 38 C.F.R. § 19.26. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case (SOC) regarding the issue of entitlement to an initial PTSD evaluation higher than 10 percent, prior to May 25, 2007, and higher than 30 percent thereafter. The issue should be certified to the Board only if a timely Form 9 substantive appeal is received. The appellant 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs