Citation Nr: 1326927 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-05 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a skin disorder, claimed as an unspecified skin rash and as basal cell carcinoma, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part, denied service connection for unspecified skin rash. In April 2010, the Veteran submitted a written request to withdraw his hearing request with a decision review officer. In a February 2009 substantive appeal (VA Form 9), the Veteran requested a personal hearing before the Board at the RO, then submitted a written request to withdraw his request in October 2011. The Board finds that there are no hearing requests pending at this time. 38 C.F.R. § 20.704(e) (2012). The issue on appeal was previously remanded by the Board in March 2012 for further evidentiary development of requesting outstanding post-service VA treatment records and to obtain a VA examination for the Veteran's skin disorder, to include basal cell carcinoma as due to in-service herbicide exposure. This was accomplished, and the claim was readjudicated in a November 2012 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue herein decided has been accomplished. 2. The Veteran had service in the Republic of Vietnam and was exposed to Agent Orange (herbicides) during active service. 3. The Veteran was not diagnosed with basal cell carcinoma in service, was not treated for basal cell carcinoma in service, and symptoms of basal cell carcinoma were not chronic in service. 4. The Veteran's basal cell carcinoma did not manifest to a compensable degree within one year of service separation. 5. Symptoms of basal cell carcinoma have not been continuous since service separation. 6. The Veteran's basal cell carcinoma is not related to active service. CONCLUSION OF LAW The criteria for service connection for a skin disorder, claimed as an unspecified skin rash and as basal cell carcinoma, to include as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.3.07, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In timely January 2008 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice included provisions for disability ratings and for the effective date of the claim. The Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording a VA examination in October 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion and findings obtained in this case are adequate. The VA nexus opinion provided considers all of the pertinent evidence of record, to include the statements of the Veteran, and provides a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, VA examinations, post-service VA treatment records, and the Veteran's statements. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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). The condition of basal cell carcinoma is considered a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In rendering a merits decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). 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"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Service Connection for Basal Cell Carcinoma The Veteran contends that, while serving in the Republic of Vietnam, he was responsible for spraying Agent Orange on brush and trees during a two week period and came in direct contact with Agent Orange. The Veteran maintains that currently diagnosed basal cell carcinoma is related to service, to include in-service herbicide exposure. At the outset, the Board finds that the Veteran served in the Republic of Vietnam. Based upon information obtained from the Veteran's service personnel and treatment records, exposure to herbicides during active service is presumed. See 38 C.F.R. § 3.307(a)(6)(iii) (a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent). Regulations pertaining to Agent Orange exposure, which includes all herbicides used in Vietnam, provide that if a veteran served on active duty in Vietnam during the Vietnam era, the veteran is presumed to have been exposed to Agent Orange or similar herbicides. These regulations also stipulate the diseases, including some types of cancer, for which service connection may be presumed due to an association with exposure to herbicide agents. The only skin condition presumed to be caused by Agent Orange exposure is chloracne, for which the Veteran does not have a current diagnosis. Because the Veteran's basal cell carcinoma is not listed among the Agent Orange-related diseases enumerated in 38 C.F.R. § 3.309(e), medical nexus may not be presumed as a matter of law. Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations, the Board is obligated to fully consider the Veteran's service connection claim on a direct basis. See Combee, 34 F.3d at 1043-44. The Board finds that the weight of the evidence demonstrates that the Veteran was not diagnosed with basal cell carcinoma or an unspecified skin rash in service, was not treated for basal cell carcinoma in service, and symptoms of basal cell carcinoma were not chronic in service. Service treatment records reveal that the Veteran was diagnosed with tinea capitis and severe pustular acne vulgaris dermatitis of the upper back and chest prior to service. See June 2, 1966 letter from Dr. M.W. There is no evidence in service treatment records of complaints, treatment, or diagnosis for an unspecified skin rash, later identified as basal cell carcinoma; however, there was evidence of in-service acne. See service treatment records dated November 1966, January 1967, and November 1967. The Board notes that service connection for acne was previously denied in an October 1971 rating decision it was found that the condition pre-existed service entrance and was not aggravated during service. Further, at the August 1968 service separation examination, the separation examiner's summary of history and clinical examination do not reflect any reported complaints, findings, or diagnosis of a skin condition, to include basal cell carcinoma. For these reasons, the Board finds that an unspecified skin condition, to include basal cell carcinoma, was not chronic in service. 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). The Board finds that the weight of the evidence demonstrates that the Veteran's basal cell carcinoma did not manifest to a compensable degree within one year of service separation. Here, there are no post-service treatment records documenting basal cell carcinoma or manifestations of such within one year of service separation. The Veteran was diagnosed with basal cell carcinoma in a March 2010 VA treatment record, 42 years after service separation. The Board next finds that the weight of the evidence demonstrates that basal cell carcinoma symptoms have not been continuous since service separation in August 1968. As indicated, the August 1968 service separation clinical examination did not reflect any skin disorder. Following service separation, the evidence of record shows no complaints, diagnosis, or treatment for basal cell carcinoma until 2010. The absence of post-service findings, diagnosis, or treatment for over 40 years after service is one factor that tends to weigh against a finding of continuous skin disorder symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1331 (2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). While the Veteran is competent to state that he had skin disorder symptoms at any time, including in service, the Board finds that the Veteran's more recent assertions of chronic skin disorder symptoms in service and continuous skin disorder symptoms, to include basal cell carcinoma since service, made in the context of the claim for service connection (VA disability compensation), are outweighed by the other, more contemporaneous, lay and medical evidence of record, and are not credible. See Charles v. Principi, 16 Vet. App. 370 (2002). The recent statements of chronic skin disorder symptoms in service and continuous post-service skin disorder symptoms are inconsistent with the service treatment record evidence, including the Veteran's own contemporaneous lay history at the service separation examination, the service separation examiner's summary of history and clinical examination, an absence of complaints or treatment for many years after service, and the histories and symptoms credibly reported by the Veteran during post-service VA treatment. See Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). The Veteran's recent statements of chronic skin disorder symptoms, to include basal cell carcinoma in service and continuous post-service symptoms are inconsistent with the Veteran's own histories and the findings during service and in post-service VA treatment records. For example, in a June 1983 general medical VA examination report, the Veteran stated that he had acne which resolved between 1973 and 1974. He denied having any specific skin rash during his exposure to Agent Orange during service. Further, during the June 1983 VA examination, the Veteran stated that over the last two years (i.e., 1981, 13 years after service separation), he developed new cystic lesions on his nose, shoulders, and back. Further, in a September 1999 VA examination report, conducted 31 years after service separation, the Veteran did not report any skin disorder, and the VA examiner noted no problems with the Veteran's skin and no cancers were present. In a November 2007 VA mental health note, the Veteran reported his past medical history, which included arrhythmia, tachycardia, hypertension, a knee injury, and hearing problems; however, no reports of a skin disorder or basal cell carcinoma were noted. In a more recent October 2012 VA examination report, the Veteran stated that his left forearm lesion was present for "many years" with a possible onset date in 2000. For accurate medical evaluation, the Veteran would be expected to give a full and accurate history. In none of these examinations did the Veteran mention a skin disorder aside from acne in service, chronic skin disorder symptoms in service, or continuous skin disorder symptoms, to include basal cell carcinoma since service separation. See Cartright, 2 Vet. App. at 25; Pond v. West, 12 Vet. App. 341 (1991). The Board also notes that the Veteran filed a service connection claim to VA for a knee disorder in June 1971, but did not include or mention a skin disorder. See Cromer v. Nicholson, 19 Vet. App. 215 (2005) (upheld Board's denial of service connection and finding that a veteran's recent post-service account of in-service events was not credible because the veteran had previously given other histories and theories that did not mention the alleged in-service event, and first "came up with the story" years after service and in connection with the compensation claim). The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, the Veteran filed a claim for service connection only three years after service separation, but did not mention a skin disorder at that time. This suggests to the Board that there was no pertinent skin disorder symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In this case, the Veteran demonstrated in 1971 that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for a skin disorder, to include basal cell carcinoma at the time of the June 1971 claim, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the lack of skin disorder symptomatology at the time he filed the claim. The Board further finds that the weight of the competent evidence demonstrates that the Veteran's skin disorder, to include basal cell carcinoma is not related to service, to include in-service exposure to herbicides. In an October 2012 VA skin medical opinion, the VA examiner reviewed the claims file, interviewed the Veteran, and performed a physical examination of the Veteran's skin. The October 2012 VA examiner then opined that it was less likely than not that the Veteran's current skin disorder (basal cell carcinoma) had its onset in service or was in any way related to service, to include in-service herbicide exposure. In support of this opinion, the VA examiner reasoned that there was no evidence of basal cell cancer during service in the service treatment records and there was no documentation indicating that the basal cell carcinoma was "in any way related to the Veteran's service." Further, the VA examiner reasoned that herbicide exposure has not been associated with increase in basal cell carcinoma. The Board finds that the October 2012 VA medical opinion is competent and probative medical evidence because it is factually accurate, as it appears the VA examiner reviewed the claims file and was informed of the relevant evidence in this case, the opinion is fully articulated, and is supported by a sound reasoning. Regarding the Veteran's statements as to the cause of the current skin disorder, to include basal cell carcinoma, the Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)). However, in this case, the cause of the Veteran's basal cell carcinoma involves a complex medical etiological question because it deals with the origin and progression of the Veteran's skin cancer, and because a complex disease process such as cancer is diagnosed primarily on clinical findings or comprehensive testing, and not on symptoms alone. The Veteran is competent to relate symptoms of a skin disorder that he experienced at any time, but is not competent to opine on whether there is a link between the current basal cell carcinoma and active service, to include in-service herbicide exposure. Such diagnoses and opinion as to physiological nexus require specific medical knowledge and training. See Rucker at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). There is additionally no probative evidence of a relationship between the Veteran's current basal cell carcinoma and his military service. The only probative nexus opinion on file, dated October 2012, which included a review of the claims file and accurate history, and which is supported by valid reasons, weighs against the claim. The Board finds that the weight of the lay and medical evidence of record reflects that the Veteran's current basal cell carcinoma had post-service onset and is not related to the Veteran's active service. The Board finds that the lay and medical evidence that is of record weighs against the claim for service connection for a skin disorder, claimed as an unspecified skin rash and as basal cell carcinoma, including as due to herbicide exposure, and outweighs the Veteran's more recent contentions regarding in-service skin disorder symptoms and continuous post-service skin disorder symptoms. For these reasons, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a skin disorder, claimed as an unspecified skin rash and as basal cell carcinoma, to include as due to herbicide exposure, and outweighs the Veteran's more recent contentions regarding in-service chronic skin disorder symptoms and continuous post-service skin disorder symptoms. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a skin disorder, claimed as an unspecified skin rash and as basal cell carcinoma, to include as due to herbicide exposure, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs