Citation Nr: 1329112 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 08-39 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for residuals of breast cancer. 2. Entitlement to service connection for a skin disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service from May 1987 to September 1987, January 1991 to October 1991 and January 2003 to January 2004. She also had additional service in the Reserves. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a personal RO hearing in April 2009. The hearing transcript has been associated with the record. The issues of service connection for posttraumatic stress disorder (PTSD) and headaches were also previously on appeal. However, a rating decision in August 2009 granted service connection for these disabilities. Thus, as this was a full grant of the benefits sought on appeal, these issues are no longer in appellate status. In August 2012, the Board reopened the Veteran's claim entitlement to service connection for breast cancer and granted service connection for hypertension. The issues of entitlement to service connection for residuals of breast cancer (on the merits) and skin disability were remanded for further development and adjudication. The Board notes that, in addition to the physical claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. 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). FINDINGS OF FACT 1. Breast cancer has not been shown to have had its onset in active service or within one year of active service; such disability is not otherwise shown to be the result of active military service. 2. A skin disorder, to include papillomatosis and lymphedema, has not been shown to have had its onset in active service or within one year of active service; such disability otherwise shown to be the result of active military service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for breast cancer have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for an award of service connection for a skin disorder, to include papillomatosis and lymphedema, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter dated in May 2006 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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. Analysis Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for certain chronic diseases, such as cancer, when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran contends that she is entitled to service connection for breast cancer and a skin disability. Specifically, she asserts that exposure to environmental hazards while stationed in the Southwest Asia Theatre of Operations during her second period of active duty caused her breast cancer. Private treatment records showed treatment for breast cancer beginning in 1996. A VA examination was conducted in February 1997, but no etiological opinion was provided. Since that time, the Veteran testified at an April 2009 RO hearing. In her testimony, she expressed the belief that her breast cancer was due to exposure to chemicals from burning oil fields, pesticides, and vaccines administered during her first period of service in the Southwest Asia Theatre of Operations. She also testified that two other females in her unit had been diagnosed with breast cancer and that her oncologist at the VA had indicated a relationship between her service in Southwest Asia and her breast cancer. A July 2008 VA treatment record showed a notation that the Veteran believed her cancer was related to her tour of duty with exposure to chemicals. The Veteran is also seeking service connection for a skin disability. She asserts that she began to experience a rash during her first tour in the Southwest Asia Theatre of Operations that has continued to the present. A March 1996 private treatment record shows complaints of a rash. However, the July 1998 service examination prior to her entry to her final period of active service showed clinically normal skin findings. During her last period of active service, a March 2003 record indicated that one of the Veteran's medications could cause a skin rash. April 2003 and June 2003 records reflect diagnoses of tinea versicolor. VA treatment records show that in February 2008, the Veteran presented with complaints of a skin rash that started in 1991 in Saudi Arabia and was symptomatic intermittently. The assessment was idiopathic guttate hypomelanosis and atypical stucco keratosis vs. verruca plana vs. other. A biopsy of one keratosis was benign. Follow-up treatment records continued to show an impression of idiopathic guttate hypomelanosis and benign keratoses. The Veteran was afforded a VA examination in June 2009. The examiner identified the skin disorder as idiopathic guttate hypomelanosis, finding no evidence of tinea versicolor. However, no etiological opinion was provided with respect to the idiopathic guttate hypomelanosis. In order to determine whether the Veteran's diagnosed breast cancer and residuals, and her diagnosed skin conditions, are related to her periods of active military service, the Veteran was afforded additional VA examinations in September 2012. The examiners indicated that the Veteran's claims file had been reviewed in connection with the examinations and reports. At the breast cancer examination, the examiner reported that the Veteran had a diagnosis of carcinoma of the left breast. By history, in 1994, the Veteran noted a mass in her left breast and had a biopsy which showed adenocarcinoma of the left breast. Initially, she underwent a lumpectomy, but since the margins were not clear she then underwent a mastectomy. She had stage 2 breast cancer with a positive axillary node but no distant metastasis. She underwent chemotherapy plus radiation therapy. In addition, she was estrogen receptor positive and underwent five consecutive years of treatment with Tamoxifen. Since 1999, the Veteran has not had any treatment and has not experienced any recurrence of the cancer. Her last mammogram in 2012 was negative and she has not had any further surgery. The examiner noted that the Veteran had residuals of the breast cancer, to include significant left arm lymphedema. Regarding whether the Veteran's condition was related to her active duty service, the examiner answered in the negative. Specifically, the examiner found that the breast cancer was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In support of his conclusion, the examiner stated that, in the absence of specific heredofamilial genetic markers, such as familial polyposis, exposure to large doses of radiation, such as in treatment of malignancies, the etiology of a specific cancer is generally thought to be mutifactoral and often unknown. The examiner explained that the medical literature did rank the relative likelihood that a particular predisposing factor will give rise to a cancer, but also stated that these were merely statistical data and did not definitively correlate a particular cancer to a constellation of predisposing factors. For breast cancer, these factors were noted to be advanced age (4X), family history (2X), BRCA gene mutation (4X), previous breast biopsy with LCIS or DCIS (9X), early menarche (2X), hormone replacement therapy (2X), sedentary lifestyle and alcohol abuse (1X), and weight gain (2X), among other factors. The examiner also noted that there was no link found to pyridostigmine bromide, the antidote to nerve gas, which was universally used in the war theater in Kuwait/Iraq in 1990-91. The examiner did note that in 2004 the Kuwaiti cancer registry indicated an increase in breast cancer in women. However, there were differences in the genetics and length of exposure to presumed toxins (such as oil fire, which burned for a time beyond the end of military hostilities). The examiner also explained that this registry looked only to Kuwaiti women and that extrapolation to American women was not necessarily applicable. The examination then noted that the Veteran's cancer appeared only three years after her Gulf War experience, which seemed like a short period of time. The examiner then commented on literature provided by the Veteran titled "Health Effects Assessment on exposure to Gulf War." However, the paper did not mention breast cancer. Based on the foregoing, the examiner stated that it was less likely than not, less than a 50 percent probability, that the Veteran's breast cancer was incurred in or the result of her military service in the Gulf War in Southwest Asia. The Veteran was also afforded a skin examination in September 2012. Per history, she had been diagnosed with papillomatosis (2008) and lymphedema (1995). The examiner noted that the Veteran had a skin biopsy in 2008 which showed pappillomatosis/hyperkeratosis. She used Lac Hydrin with some, but not complete success. The examiner indicated that the lesions were not itchy or painful and that there was no skin breakdown. In addition, the Veteran was noted to have significant lymphedema in the left arm that was firm and slightly erythematous, and occasionally painful since surgery 17 years ago. The Veteran was noted to have undergone physical therapy and wore a compression sleeve. However, there had not been significant success in remediating the swelling. The examiner was then asked to determine whether it was a likely as not that the Veteran's current skin conditions, present since March 2006, manifested during either period of service in the Southwest Asia theater of operations. The examiner answered in the negative. Specifically, she found that the skin conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the examiner stated that the lymphadema was clearly related to the breast cancer and was a very well acknowledged residual of breast cancer surgery. The other skin conditions mentioned in the report and found on biopsy were noted to be relatively common and, unlike like malignant melanoma, which the examiner stated were clearly etiologically related to sun exposure, the common conditions had no clear etiology. The examiner stated that there was no literature to support that either of the biopsy proven conditions were caused by toxins, oil fires, volatile byproducts of fires, vaccines, or antidotes or any other exposure to toxins that were inherent in the environment in the Southwest Asia theater during the referred period. The examiner explained that all the Veteran's symptoms were diagnosed and that the Veteran's account of her skin rashes as well as her symptoms had been taken into account. Based on the foregoing, the Board finds that entitlement to service connection for breast cancer and a skin condition is not warranted. Here, the Veteran has been diagnosed with current residuals of breast cancer as well as skin conditions. However, the VA examinations dated in September 2012 specifically found that the Veteran's diagnosed disorders were not related to her military service, to include her periods service in the Gulf War Theater of Operations. The Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. The credibility and weight to be attached to these opinions is within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board must account for evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. Guerrieri v. Brown, 4 Vet. App. 467 (1993); Black v. Brown, 10 Vet. App. 279 (1997). In this case, the Board finds that the opinions of the VA examiners in this case to be most persuasive, based as they were on examinations of the Veteran and her claims file. In addition, the Board notes that the Veteran has contended on her own behalf that her claimed disabilities are related to her active service. In this regard, lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, while VA must consider lay evidence, it may give it whatever weight it concludes the evidence is entitled to, and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010); see also See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J. concurring) ("the Board should avoid overbroad statements about the competence of laypersons and should carefully distinguish its treatment of lay testimony of symptoms and its analysis of lay competence on issues of diagnosis or causation"). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds that the diagnosis and etiology of the Veteran's cancer and skin disabilities are complex medical questions, beyond the competency of a layperson. The Board further finds that the questions regarding the relationship between such disabilities and military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, as the Veteran has only provided her own conclusory statements regarding diagnosis and causation, the Board finds that the Veteran's statements to be of little probative value as she is not competent to opine on such complex medical questions. In summary, the Board concludes that the preponderance of the evidence is against the Veteran's claims. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Because the preponderance of the evidence is against the claims, the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for breast cancer and residuals is denied. Service connection for a skin disorder, to include papillomatosis and lymphedema, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs