Citation Nr: 1333042 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 13-07 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a skin disability, to include skin cancer. ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The Veteran's current skin disability, including skin cancer residuals, is related to in-service sun exposure. CONCLUSION OF LAW The criteria for service connection for a skin disability, including residuals of skin cancer, have been met. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). 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. Considering the pertinent evidence in light of the governing legal authority, the Veteran's service connection claim must be granted. As reflected in a January 2011 statement, his March 2013 substantive appeal, and statements made during a December 2012 VA examination, the Veteran contends that he has a current skin disability, including residuals of prior skin cancer, as the result of excessive sun exposure and severe sunburn incurred during his period of service in Vietnam. He asserts that he did not report his sun exposure in service, that during service his duty was operating an amphibious tractor to haul troops and supplies as part of combat operations in a combat zone, which was usually on the beach, and that he was usually shirtless and sunburned. He has further reported that he had one blistering sunburn when he was five or six-years-old, but no other sunburns as a child, and that after his service he was careful about his sun exposure, and only recalled being burned on his left arm once while driving. The Board finds the Veteran's assertions regarding his sun exposure and sunburn in service to be credible. Service personnel records reflect that the Veteran served in the Republic of Vietnam, had more than one year and one month of foreign and/or sea service, and served as an amphibious tractor crewman. Furthermore, such records reflect that the Veteran was awarded the Combat Action Ribbon, and he is therefore shown to have had combat service in Vietnam. His assertions of excessive sun exposure and severe sunburn in Vietnam while wearing no shirt in a beach setting and operating an amphibious tractor to haul troops and supplies as part of combat operations in a combat zone are consistent with the circumstances of such service. Furthermore, there is no evidence of record that contradicts the Veteran's assertions of in-service sun exposure or that calls into question his credibility, beyond any form of combat presumption that may or may not exist for this condition. Simply stated, there is simply no reason not to believe the Veteran when he indicates he repeated and severely sunburned in Vietnam over a year. Private pathology reports reflect diagnoses of borderline intraepithelial carcinoma in January 1998, basal cell carcinoma of the face in November 2000, basal cell carcinoma mixed with sqaumoid features in March 2003, and morpheaform basal cell carcinoma of the left cheek n January 2004. On VA examination in December 2012, the Veteran reported having all such lesions removed, and was found to have had a few actinic keratosis on his left ear, left cheek, and head, a left upper outer maxilla scar due to excision, and excision scars on the right pectoralis and right breast. The only competent and probative medical nexus opinions are those of a VA physician who examined the Veteran in December 2012 and provided a nexus opinion in December 2012 and addendum opinion in January 2013. Following examination of the Veteran and review of the claims file in December 2012, the VA physician noted that the Veteran reported being on a beach the majority of his time in Vietnam and having substantial sun exposure without any protection, and it was noted that he was a fair-skinned individual. The examiner stated that if the Veteran did have the type of sun exposure he claimed and was consistently sunburned the majority of his time over a year, this could be a substantial cause of later skin cancers. The examiner noted that the Veteran reported one episode of blistering sunburn as a child also, but stated that most of his childhood and adult life after Vietnam he stayed out of, or wore protection while in, the sun. The examiner further stated that there were no service treatment records regarding sunburn, but that these would not necessarily be expected as the Veteran stated that he never had blistering sunburns. The examiner concluded that, based on the history given by the Veteran, it was at least as likely as not that extreme sun exposure in Vietnam could be a substantial cause of his skin cancers that had been diagnosed since 2000. The examiner stated, however, that it was impossible to quantify his lifetime exposure, which usually would exceed the exposure in a short-term situation, unless the exposure was excessive as the Veteran had reported; again, the examiner noted that the Veteran was very fair-skinned. The examiner further stated that her opinion was based on the history given by the Veteran being truthful in terms of quantifying his exposure in Vietnam and elsewhere. The VA physician was asked to clarify her December 2012 opinion, and in a January 2013 addendum, she stated that she could not make a determination as to whether the Veteran's skin cancer was caused by sun exposure in Vietnam without resorting to mere speculation, as she was unable to quantify the Veteran's sun exposure over his lifetime outside of service versus his time in Vietnam. She noted that the Veteran was fair-skinned and reported significant, constant exposure in Vietnam, little sun exposure otherwise, and always taking protection from or avoiding the sun, outside of a childhood sunburn. Read together, the VA physician's December 2012 opinion and January 2013 opinion suggest that, while the physician was unable to quantify the Veteran's sun exposure in service versus his exposure outside of service, if the Veteran's statements regarding the nature and extent of his sun exposure and sunburn while in Vietnam were credible, it is at least as likely as not that such sun exposure in Vietnam was a substantial cause of his subsequent skin cancers. As the Board in this case finds that the Veteran's account of his sun exposure and sunburn in service is credible, the Board also finds that the competent and probative medical nexus evidence weighs in favor of the Veteran's claim, and suggests that it is at least as likely as not that his in-service sun exposure resulted in later skin disability, including skin cancer and its current residuals. Also, in this regard, there is no competent evidence contradicting the medical nexus opinions of the December 2012 VA examiner. Given the above, the Board finds that the evidence pertaining to whether the Veteran's current skin disability, including skin cancer residuals, is related to excessive in-service sun exposure is at least in relative equipoise. Resolving reasonable doubt in the Veteran's favor, the Board finds that current skin disability, including skin cancer residuals, is related to service. Accordingly, the Board finds that service connection for a skin disability, including residuals of skin cancer, must be granted. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. The nature and extent of this disability is not before the Board at this time. Finally, as provided for by the Veterans Claims Assistance Act of 2000, 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Service connection for a skin disability, including residuals of skin cancer, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs