Citation Nr: 1329963 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-01 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure and secondary to service-connected disabilities. 2. Entitlement to service connection for skin cancer, to include as due to herbicide exposure and secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and his spouse. ATTORNEY FOR THE BOARD M. Riley INTRODUCTION The Veteran served on active duty from January 1966 to October 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, denied entitlement to service connection for hypertension and found that new and material evidence had not been submitted to reopen a claim for entitlement to service connection for skin cancer. In May 2010, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The appeal was previously before the Board in October 2011 and February 2013 when it was remanded for further development. The claim for entitlement to service connection for skin cancer was also reopened by the Board in February 2013. The case has now returned to the Board for further appellate action. FINDINGS OF FACT 1. Hypertension was not manifested within one year from the Veteran's discharge from service, is not the result of a disease or injury in service including herbicide exposure, and is not caused or aggravated by a service-connected disability. 2. Skin cancer was not manifested within one year from the Veteran's discharge from service, is not the result of a disease or injury in service including herbicide exposure, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active service nor may it be presumed to have been incurred therein, and it is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. Skin cancer was not incurred in or aggravated by active service nor may it be presumed to have been incurred therein, and it is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that service connection is warranted for hypertension and skin cancer as the conditions were incurred due to herbicide exposure during active duty service. In the alternative, the Veteran contends that the claimed conditions are due to or aggravated by service-connected disabilities. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient 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 (Fed. Cir. 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)). Service connection may 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). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as hypertension and malignant tumors, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection is also provided for a disability, which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Hypertension The Veteran contends that service connection is warranted for hypertension as it was incurred during active duty service in Vietnam and exposure to herbicides. In the alternative, the Veteran contends that service connection is warranted for hypertension as secondary to service-connected diabetes mellitus and ischemic heart disease. Turning first to service connection on a direct basis, the record clearly establishes the presence of a current disability. The Veteran was diagnosed with hypertension by a VA examiner in December 2011 and February 2013. He has also received treatment for the condition with various private and VA physicians throughout the claims period. A current disability is therefore demonstrated. With respect to whether the Veteran incurred a service injury, service records are negative for evidence pertaining to hypertension or elevated blood pressure. The Veteran's blood pressure and vascular system were normal at the time of the October 1967 separation examination and he denied a history of high or low blood pressure on the accompanying report of medical history. The Veteran contends that hypertension was incurred due to herbicide exposure during active duty service. Although service treatment records do not document any findings indicative of hypertension, personnel records confirm the Veteran's presence in Vietnam during active duty service. His exposure to herbicides is therefore presumed and an in-service injury is established. See 38 U.S.C.A. §§ 1116(f), 1154; 38 C.F.R. § 3.309(e); see also Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. VA regulations provide for a presumption of service connection for certain disabilities associated with herbicide exposure under 38 C.F.R. §§ 3.307 and 3.309. Hypertension is not subject to presumptive service connection based on exposure to herbicides; however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, while service connection on a presumptive basis is not possible for the Veteran's claimed disability due to herbicide exposure, the Board will determine whether service connection is warranted as directly due to active duty service and exposure to herbicides. Regarding the third element of service connection, a nexus between the Veteran's current disability and the in-service injury, the Board notes that service records do not indicate such a link. No chronic conditions were noted on the October 1967 retirement examination and the service records do not contain any complaints or treatment for elevated blood pressure. There is also no post-service evidence of hypertension until the 1980s, approximately 15 years after discharge, when the Veteran reports he was initially diagnosed with the disability. Service connection is therefore not possible for the Veteran's hypertension as a chronic disease subject to presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309 (certain chronic diseases are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service). The absence of any clinical evidence for years after service also weighs the evidence against a finding that hypertension was present in service or in the year immediately after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The weight of the medical evidence is also against a finding of service connection due to service. The record does not contain any competent medical evidence in favor of a link between the Veteran's hypertension and any incident of active service, to include exposure to herbicides. The only medical opinions of record, those of the December 2011 VA examiner (including September 2012 and February 2013 addendum opinions), weigh against the claim. After reviewing the claims file and the Veteran's allegations, the VA examiner concluded that it was less likely as not that the Veteran's hypertension was related to any incident of active duty service. The VA examiner noted that the Veteran's service records were entirely negative for any indication of hypertension and the specific character of the disability, i.e. the diagnosis of primary (essential) hypertension, did not indicate a link to service. There is also no medical evidence in support of the claim for service connection on a secondary basis. The Veteran's service-connected disabilities include diabetes mellitus and ischemic heart disease. There is no competent medical evidence in support of the claim for secondary service connection and the December 2011 VA examiner provided several medical opinions against the claim. The VA examiner specifically found that the Veteran's hypertension was not caused or aggravated by service-connected diabetes or ischemic heart disease based on the Veteran's normal renal function and the character of the condition as primary hypertension. Service connection is possible for certain chronic disabilities, such as hypertension, under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has not reported a history of continuous symptoms of hypertension since active duty service. He first reported experiencing borderline elevated blood pressure readings at the April 1985 Agent Orange registry examination, but did not report an actual diagnosis of hypertension. He also did not testify at the videoconference hearing that the condition was initially identified during active service or that he has experienced symptoms associated with elevated blood pressure since that time. As the Veteran has not reported a continuity of symptoms since service, service connection under 38 C.F.R. § 3.303(b) is not warranted. The Board has also considered the testimony of the Veteran connecting his hypertension to service or a service-connected disability, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr, supra. The Board acknowledges that the Veteran is competent to testify as to observable symptoms, but finds that his opinion as to the cause of the disability simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). In sum, the post-service medical evidence of record shows that the first evidence of hypertension was years after the Veteran's separation from active duty. In addition, the weight of the competent medical evidence is against a finding that the Veteran's hypertension is etiologically related to any incident of military service (to include herbicide exposure), or was incurred secondary to a service-connected disability. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). Skin Cancer The Veteran contends that he incurred skin cancer due to herbicide exposure during active duty service, or in the alternative, that it was incurred due to service-connected diabetes mellitus. The record clearly establishes a current disability; the Veteran has undergone numerous biopsies and removal of skin lesions throughout the claims period. He has received multiple diagnoses of basal cell carcinoma (BCC) by his private dermatologists and was diagnosed with BCC, squamous cell carcinoma, and malignant melanoma upon VA examination in March 2013. The Board also finds that an in-service injury is demonstrated. The Veteran's service treatment records are negative for treatment or complaints related to the Veteran's skin (including sun burns) and the Veteran's skin was normal at the October 1967 separation examination. The Veteran also denied experiencing any skin disease, tumor, growth, cyst, cancer, or boils on the accompanying report of medical history. Despite the lack of documentation during service, the Veteran has reported that he received large amounts of sun exposure during his almost two years of active duty service and was exposed to herbicides while in Vietnam. The Veteran is competent to report injuries during service, such as sun exposure, and his exposure to herbicides is presumed based on his confirmed service in Vietnam. See 38 U.S.C.A. §§ 1116(f), 1154; 38 C.F.R. § 3.309(e); see also Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. An in-service injury is therefore established. Skin cancer of the type manifested by the Veteran is not included in the list of disabilities subject to presumptive service connection based on exposure to herbicides contained in 38 C.F.R. §§ 3.307 and 3.309. However, as noted above, the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee at 1042. The Board notes that service records do not indicate a link between the Veteran's skin cancer and any incident of active service. No chronic skin conditions or abnormalities are documented in the service treatment records, and the Veteran's skin was normal during the October 1967 separation examination. He also specifically denied a history of skin diseases or abnormalities on the separation report of medical history. The earliest post-service medical evidence of skin cancer dates from September 1980, more than 10 years after service, when a biopsy from a private hospital indicated BCC. The Veteran and his wife also testified in May 2010 that that he has experienced cancerous skin lesions since the 1970s, at least several years after his discharge from active duty. Service connection is therefore not possible for the Veteran's malignant tumors as a chronic disease subject to presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309 (certain chronic diseases are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service). The absence of any clinical evidence for years after service also weighs the evidence against a finding that skin cancer was present in service or in the year immediately after service. Maxson, supra. The weight of the medical evidence is also against a finding of service connection due to service. The record does not contain any competent medical evidence in favor of a link between the Veteran's skin cancer and any incident of active service, to include exposure to herbicides or the Veteran's reports of multiple sunburns. While the competent medical evidence establishes that the Veteran's skin cancer is the result of sun exposure, it does not specifically relate it to the Veteran's less than two year period of active service. The Veteran's private and VA providers have related his skin cancer to sun exposure. In February 1990, a biopsy of several facial skin lesions by a private plastic surgeon demonstrated sun-damaged skin with residual or recurrent BCC. At the time of the February 1990 examination with the plastic surgeon, the Veteran reported a long family history of skin cancer and a past and present history of spending a great deal of time outdoors. Similarly, during an October 2005 initial evaluation with his current private dermatologist, the Veteran stated that he had worked outside in the construction industry for many years. The dermatologist observed several areas of sun-damaged skin and early developing BCC. The Veteran was also provided a VA examination in March 2013. The examiner concluded that it was at least as likely as not that the Veteran's multiple episodes and types of skin cancer were causally related to sun exposure, but it would require speculation to know when the sun exposure that resulted in cancer occurred. This opinion was rendered following complete review of the Veteran claims file, including service treatment records and the Veteran statements regarding his service exposure to sun and herbicides. Thus, the competent medical evidence of record establishes that the Veteran's skin cancer is due to sun exposure, but does not link the exposure to the Veteran's active duty service. There is also no competent medical evidence supporting the claim for service connection on a secondary basis. The Veteran's representative argued at the May 2010 videoconference hearing that the Veteran's skin cancer was related to service-connected diabetes mellitus, but there is simply no competent medical evidence in support of the claim for secondary service connection. The Board notes that the Veteran also testified that diabetes was diagnosed in approximately 2005, while he has received treatment for skin cancer since the 1970s. Service connection is possible for certain chronic disabilities, such as malignant tumors, under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has not reported a history of continuous symptoms of skin cancer since active duty service. The history he provided during the May 2010 videoconference hearing and while receiving VA and private treatment throughout the claims period, is that he first manifested cancerous skin lesions in the early 1970s, several years after his discharge from service in October 1967. As the Veteran has not reported a continuity of symptoms since service, service connection under 38 C.F.R. § 3.303(b) is not warranted. The Board has also considered the testimony of the Veteran connecting his skin cancer to service or a service-connected disability, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr, supra. The Board acknowledges that the Veteran is competent to testify as to observable symptoms, but finds that his opinion as to the cause of the disability simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). In sum, the post-service medical evidence of record shows that the first evidence of skin cancer was years after the Veteran's separation from active duty. In addition, the weight of the competent medical evidence is against a finding that the Veteran's disability is etiologically related to any incident of military service (to include exposure to the sun and herbicides), or was incurred secondary to a service-connected disability. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in March 2008 and June 2008 letters. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the March and June 2008 letters. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment from the Cleveland VA Medical Center (VAMC), and available private medical records. Additionally, the Veteran was provided VA examinations in December 2011 and March 2013 in response to his claims. Additional VA medical opinions pertaining to the claim for entitlement to service connection for hypertension were obtained in September 2012 and February 2013. The Board also finds that VA has complied with the October 2011 and February 2013 remand orders of the Board. In response to the Board's remands, the Veteran was provided VA examinations to determine the nature and etiology of the claimed hypertension and skin cancer in December 2011 and March 2013. Addendum medical opinions were also obtained in September 2012 and February 2013. The Board observes that the March 2013 VA examiner provided a medical opinion linking the Veteran's skin cancer to sun exposure, but found that it would require mere speculation to determine whether the precipitating sunburns occurred before, during or after service-especially in light of the contents of the service treatment records which were negative for any complaints or treatment for skin and sun-related symptoms. The complete claims file and service records were reviewed by the VA physician. The Veteran was also physically examined by the VA examiner who specifically considered the Veteran's own contentions regarding sun and herbicide exposure during service in the examination report. The March 2013 VA examination therefore includes specific reference to evidence of record, a basis for the stated conclusion, and the examiner stated what additional evidence would permit an opinion in the case, specifically, documentation of skin abnormalities during active service. The Board finds that the stated basis for the opinion is adequate and remanding for an additional medical opinion is not required. In Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court stated that VA need not "proceed through multiple iterations of repetitive medical examinations until it obtains a conclusive opinion or formally declares that further examinations would be futile," but it must be clear "that the examiner has not invoked the phrase 'without resort to mere speculation' as a substitute for the full consideration of all pertinent and available medical facts to which a claimant is entitled." In this case, it is clear that the examiner provided the fullest medical opinion possible based on the current record and additional attempts to obtain a second opinion are not required. The Veteran was also contacted in October 2011 and February 2013 letters and asked to provide medical release forms to allow VA to obtain records of private treatment on his behalf. The Veteran responded with a November 2011 release form and copies of some records of private treatment. A note on the November 2011 release form indicated that more evidence was to follow in two weeks, but no additional evidence was ever received from the Veteran. Additionally, the Veteran did not respond to the February 2013 letter asking that he provide release forms for all private health care providers who have treated the disabilities on appeal. It is the responsibility of Veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). It is clear from the above that VA has done its utmost to develop the evidence with respect to the Veteran's claims and any failure to develop private evidence in support of the claims rests with the Veteran himself. The case was also readjudicated in a June 2013 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for hypertension, to include as due to herbicide exposure and secondary to service-connected disabilities, is denied. Entitlement to service connection for skin cancer, to include as due to herbicide exposure and secondary to service-connected diabetes mellitus, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs