Citation Nr: 1333362 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 07-12 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hammertoes. 2. Entitlement to service connection for plantar fasciitis. 3. Entitlement to service connection for basal cell carcinoma, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1991. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from rating decisions of the VA Regional Office in Columbia, South Carolina that among other things, denied service connection for bilateral hammertoes, plantar fasciitis and basal cell carcinoma, to include as due to exposure to herbicides. The history of the appeal reflects that entitlement to a compensable rating for bilateral hearing loss was denied by Board decision in January 2011. Other issues on appeal, including entitlement to service connection for bilateral foot pain, plantar fasciitis and basal cell carcinoma were remanded for further development. By decision dated in May 2013, the Board denied a rating in excess of 10 percent for hallux rigidus of the left great toe with arthritis, a rating in excess of 10 percent for hallux rigidus of the right great toe with arthritis, a rating in excess of 10 percent for actinic keratosis with dysplasia prior to February 25, 2011, a rating in excess of 30 percent for actinic keratosis with dysplasia since February 25, 2011, and a total rating based on unemployability due to service connected disability. These matters are no longer for appellate consideration. By decision dated in May 2013, the Board remanded the issues of entitlement to service connection for bilateral hammertoes, plantar fasciitis and basal cell carcinoma for further development. In correspondence received in August 2012, the Veteran raised the issue of entitlement to an earlier effective date for a 30 percent disability rating for status post excision, actinic keratosis with dysplasia, left nasal bridge. This matter is referred to the RO for appropriate consideration. Following review of the record, the issue of entitlement to service connection for plantar fasciitis, to include as secondary to service-connected disability, 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. FINDINGS OF FACT 1. The Veteran does not have hammertoes. 2. The Veteran does not have basal cell carcinoma. CONCLUSIONS OF LAW 1. Bilateral hammertoes were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2013). 2. Basal cell carcinoma was not incurred in or aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1110, 1113, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claims of entitlement to service connection for hammertoes and basal cell carcinoma. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in September 2006 and April 2007 and thereafter of the information and evidence needed to substantiate and complete the claims, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, to include securing private records, VA clinical data and obtaining VA compensation examinations that are determined to be adequate for adjudication purposes. The Board finds no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claims of entitlement to service connection for hammertoes and basal cell carcinoma are ready to be considered on the merits. Pertinent Law and Regulations Service connection may be granted for 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. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2013). Certain chronic diseases, to include a malignancy, may be service connected if incurred or aggravated by service, or if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving the shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2013). Factual Background Service treatment records reflect that the Veteran was treated in February 1983 for left foot symptoms diagnosed as arthritis of the first metacarpophalangeal joint and painful hallux. On service discharge examination in April 1991, he indicated that he had foot trouble. Service treatment records also show that the appellant received treatment for actinic keratoses for which he underwent excision. The appellant was afforded a VA compensation examination in December 1991. He stated that in 1990, he was diagnosed as having a 'skin cancer' on the left nasal bridge that was subsequently removed. He provided history of excessive sun exposure while stationed in Southeast Asia and one episode of severe sunburn with blistering in Southeast Asia in the late 1960s. He reported that over the past few months, he had noticed a spot of erythematous, rough and scaly skin adjacent to the surgical scar that remained after removal of the initial skin cancer. The appellant related that he had bilateral foot pain located at the base of the great toe on both feet that was exacerbated by physical activity and weather. Physical examination of the skin disclosed a surgical car on the left nasal bridge with a rough-textured erythematous macule adjacent to a circular scar. On examination of the feet, pain was noted upon extension and flexion of the great toe, bilaterally. Following examination, the diagnoses included musculoskeletal bilateral foot pain and status post excision of presumed squamous cell carcinoma of the left nasal bridge. The examiner commented that the Veteran appeared to have a recurrence of squamous cell carcinoma at the margin of the previous incision. He was instructed to seek follow-up in this regard. The Veteran subsequently underwent a special VA foot examination in December 1991. On evaluation, extreme tenderness was elicited over the dorsum of the first metatarsal phalangeal joint of both great toes. Following examination, the diagnosis was bilateral hallux radius with extreme pain, left greater than right. By rating action dated in September 1991, service connection was granted for hallux rigidus of the right and left great toes with chronic pain, status post excision, and actinic keratosis with dysplasia. Records dated between 2003 and 2005 were received from the Charleston Naval Hospital and M. Sheperd, M.D., showing that the Veteran was seen on numerous occasions for skin lesions of the face for which various impressions were rendered that included probable seborrheic keratotic lesion, actinic damage, multiple actinic keratoses, rule out basal cell carcinoma, recurrent erythemic lesion, dermal fibrosis consistent with scar, and squamous cell carcinoma in situ without follicular involvement, etc. Final diagnoses of sebaceous hyperplasia, focal nonspecific chronic inflammation, and negative for basal cell carcinoma were provided following shave biopsy in October 2003. A shave biopsy was performed in October 2005 with a final diagnosis of sebaceous keratosis. A claim for basal cell carcinoma as a result of exposure to Agent Orange was received in September 2006. Following the denial of the claim, in a notice of disagreement received in December 2006, the Veteran related that he had basal cell carcinomas removed while on active duty and had to have this removed from his nose every two years or so. The Veteran was afforded a VA examination of the feet in January 2007 and was found to have hallux rigidus of the right and left great toes with extensive osteoarthritic changes involving the first metatarsalphalangeal, and the first and second metatarsal joints, bilaterally. VA examinations of the skin were conducted in January and August 2007. The impressions following examination were actinic keratosis on the nose and recurring actinic keratoses. M. J. Stith, M.D., wrote in May 2008 that the Veteran was seen in consultation for actinic damage on his face and arms with a history of numerous actinic keratoses on his face that had been frozen with liquid nitrogen. It was reported that he had a suspicious lesion on his left periauricular region that was biopsied to exclude basal cell skin cancer. Dr. Stith stated that because of the appellant's history of squamous cell carcinoma in situ at the ridge of the nose in 2003 and his generalized actinic damage, he was at increased risk for developing skin cancers. Internet-obtained clinical authority pertaining to the growth and clinical course of skin cancer, including basal cell carcinoma, and actinic keratoses was received in conjunction with the Representative's November 2010 Informal Hearing Presentation. Pursuant to the Board's January 2011 remand, the appellant was afforded a VA examination in February 2011. The examiner indicated that the claims folder was reviewed. The Veteran stated that he had foot pain while in the military for which he used aspirin on a continuing basis. He reported that he had no trauma to the feet in service except for exposure to cold weather. Upon being questioned about his skin disorder, the Veteran related a history of actinic keratoses in service and thereafter that had been "burned off" over the years. Skin and foot examinations were performed and X-rays were obtained. Following examination, the impressions included bilateral plantar fasciitis, bilateral osteoarthritis of the feet, bilateral hallux rigidus, scars on the bridge of the nose and left upper forehead secondary to actinic keratosis treatment, bilateral calcaneal spurs, and no clinical or objective findings to support the diagnosis of basal cell carcinoma, etc. The examiner stated that the Veteran had additional diagnoses causing foot pain that included bilateral Achilles tendonitis, plantar fasciitis and calcaneal spurs and osteoarthritis of the feet. She emphasized, however, that those foot disorders were not analogous to hammertoes as alleged in a November 2010 statement. The examiner further opined that the Veteran's skin lesions were not analogous to malignant neoplasm as the appellant indicated in a November 2010 statement. She pointed out that even though the Mayo Clinic recognized that 'Many doctors consider an actinic keratosis to be precancerous because it can develop into skin cancer...' there were NO records that indicated that the Veteran's skin lesions became malignant neoplasms/cancer. It was added that there was NO evidence that basal cell carcinoma had been diagnosed, including in the service treatment and post service dermatology records. The examiner stated that "Therefore, I will NOT opine on whether or not there is an etiological relationship between the Veteran's basal cell carcinoma and his skin lesions as there is NO evidence that he has ever had basal cell carcinoma." Subsequently received were private clinical records dated between 2003 and 2010 from M. Sheperd, M.D., showing that the Veteran received treatment for continuing skin symptomatology primarily diagnosed as actinic keratoses, as well as other diagnoses that included squamous cell carcinoma in situ without follicular involvement, seborrheic keratosis, granulomatous dermatitis and chronic perifolliculitis, and solar keratosis, etc. Legal Analysis 1. Service connection for bilateral hammertoes. As reported previously, the Veteran sought treatment in service for foot symptoms. The post service record reflects continuing treatment and follow-up for bilateral foot disability primarily diagnosed as hallux rigidus with arthritis for which service connection is effect. However, the extensive post service clinical data, including VA and private records, contain no evidence of complaints or treatment pertaining to hammertoes. The appellant has been afforded a number of VA examinations over the years and there has been no reference to hammertoes on any occasion. On most recent VA examination in February 2011, the examiner unequivocally stated that the Veteran did not have hammertoes. The Board has carefully reviewed the evidence and has considered that the appellant is competent to report foot symptoms. See Layno, supra. The Board points out, however, that neither the Veteran nor the clinical evidence identifies any acceptable evidence, medical or otherwise, that tends to show current disease of the feet diagnosed as hammertoes. Congress specifically limits entitlement to service connection for disease or injury to cases where there is a disability. In the absence of proof of current disability due to disease or injury there can be no valid claim. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). Additionally, the Federal Circuit has determined that in order for a veteran to qualify for entitlement to compensation under statute, the existence of a disability must be proved, and as having resulted from a disease or injury that occurred in the line of duty. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). In this regard, the Board observes that no identifiable pathology (injury or disease) has been demonstrated since the inception of the claim to show that the appellant has hammertoes. The evidence does not reflect any disability or disease of this nature for which service connection may be granted. Therefore, the preponderance of the evidence is against the claim of service connection for hammertoes. There is no doubt to be resolved in the Veteran's favor and the benefit sought is denied. 38 U.S.C.A. § 5107(b). 2. Service connection for basal cell carcinoma. The Veteran's service treatment and post service records reflect treatment for actinic keratosis but do not refer to any treatment for basal cell carcinoma. The Board observes that despite his statements to the contrary, there is no indication that he had basal cell carcinomas removed in service. The post service clinical data reflect that the Veteran has undergone extensive skin follow-up and diagnostic testing over the years, including shave biopsies, and basal cell carcinoma was specifically ruled out. The appellant has been afforded a number of VA skin examinations over the years and basal cell carcinoma has never been diagnosed. On most recent VA examination in February 2011, the examiner clearly emphasized that there was no evidence that he had ever had basal cell carcinoma. Therefore, the Veteran has not submitted any clinical evidence showing that he has basal cell carcinoma for which service connection is claimed. No clinical evidence of current disability in this regard has been received. The Board points out that the existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a current disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992), See also McClain v. Nicholson, 21 Vet.App. 319 (2007). Although the Veteran claims that he has basal cell carcinoma of service onset or that it is related to service-connected actinic keratosis, VA has no clinical evidence of any disability in this regard. The Board has considered that the appellant is competent to report that he has had skin symptoms since service. See Layno supra; see also Falzone v. Brown, 8 Vet.App. 398, 408 (1995). The Board points out, however, that the appellant has neither identified nor produced any acceptable evidence, medical or otherwise, that corroborates his lay account of basal cell carcinoma for which service connection is being sought. The Board reiterates that while the appellant is competent to report that he has perceived skin symptoms since service, his self assessment as to whether he has basal cell carcinoma is not capable of lay observation. Rather, the opinion of a skilled clinical professional is necessary to demonstrate the existence, or lack thereof, of pathology and disability in this regard. The Board reiterates that no physician of record has determined that the Veteran has basal cell carcinoma. Moreover, in statements in the record dated in March 2007and February 2008, he himself, alludes to a "misunderstanding" regarding the carcinoma claim and indicates that there has been no diagnosis of such. In any event, a current disability characterized as basal cell carcinoma is not verified. In view of such, there is no need to discuss whether it is secondary to a service-connected disability or is due to exposure to Agent Orange. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Service connection is therefore denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for bilateral hammertoes is denied. Service connection for basal cell carcinoma is denied. REMAND The Veteran asserts that he has plantar fasciitis that is related to service. A March 2008 VA outpatient record reflects that the Veteran was noted to have plantar fasciitis. When he was afforded a VA examination in this regard in February 2011, the examiner opined that "Since I am unable to locate any diagnosis of plantar fasciitis in service medical records, it is my opinion that this disorder is not etiologically related to service or secondary to his service-connected foot disorders because hallux is degenerative in nature and planter fasciitis is inflammatory in nature and both are separate physiologic processes." However, VA is required to consider all issues reasonably raised by a veteran's statements and the evidence. See EF v. Derwinski, 1 Vet.App. 324, 326 (1991). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2013). The Court of Appeals for Veterans Claims (Court) has held that the term "disability" as used in 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.310(a) should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service- connected condition." Allen v. Brown; 7 Vet.App. 439, 448 (1995) (en banc) (additional disability resulting from aggravation of a nonservice- connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310. The record reflects that although the February 2011 examiner provided an opinion to the effect that plantar fasciitis was not secondary to the service-connected foot disorders, she did not provide an assessment as to whether plantar fasciitis was made chronically worse or aggravated by service-connected hallux rigidus with arthritis, as required pursuant to Allen. The Board thus finds that the February 2011 examination report is inadequate and must be remanded for an addendum or supplementary opinion in this regard. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran VCAA notice on the issue of entitlement to service connection for plantar fasciitis as secondary to service-connected disability, including by way of aggravation. 2. Refer the claims folder to the same VA examiner (or another one if that one is not available) who examined the Veteran in February 2011 for a supplementary opinion. [The Veteran may also be scheduled for another VA examination if this is deemed indicated.] The examiner should specifically state whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that: The Veteran's current foot disabilities that include plantar fasciitis, Achilles tendonitis, and calcaneal spurs are made chronically worse (aggravated) by the service-connected bilateral hallux rigidus with osteoarthritis. The examination report must include a rationale for the opinion and conclusion reached. 3. The RO should ensure that the medical report requested above complies with this remand and its instructions. If the report is insufficient, or if any requested action is not taken or is deficient, it should be returned for correction. See Stegall v. West, 11 Vet.App. 268, 271 (1998). 4. After taking any further development deemed appropriate, re-adjudicate the remaining issue on appeal. If the benefit is not granted, provide a supplemental statement of the case to the Veteran and his representative before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs