Citation Nr: 1333486 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-22 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a disability manifested by fatigue, to include as secondary to service-connected disability. 2. Entitlement to service connection for a disability manifested by weight gain, to include as secondary to service-connected disability. 3. Entitlement to service connection for scar, residual of an excision of squamous cell carcinoma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1972 to January 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In October 2012 a Travel Board hearing was held before the undersigned; a transcript is associated with the record. FINDINGS OF FACT 1. The Veteran is not shown to have a disability entity manifested by fatigue. 2. The Veteran is not shown to have a disability entity manifested by weight gain. 3. The Veteran's skin rash in service was acute and transitory and resolved without residual disability, and any current skin disability, to include residuals of an excision of squamous cell carcinoma, was not manifested in, and is not shown to be related to, his service, to include as due to exposure to Agent Orange. CONCLUSIONS OF LAW 1. Service connection for a disability manifested by fatigue, to include as secondary to service-connected disability, is not warranted. 38 U.S.C.A. §1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). 2. Service connection for a disability manifested by weight gain, to include as secondary to service-connected disability, is not warranted. 38 U.S.C.A. §1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). 3. Service connection for scar, residual of an excision of squamous cell carcinoma, is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication. Letters dated in July 2008 and March 2009 explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria. In addition, a June 2012 letter provided the Veteran the requisite information pertaining to a claim of secondary service connection. He has had ample opportunity to respond and supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The Board finds that the record, as it stands, includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. The Veteran has not been afforded an examination to secure an opinion regarding the etiology of any disability being considered in this decision. The Board finds that based on the evidence of record, an examination is not necessary. As is discussed in greater detail below, the record does not show the Veteran has a disability that may be related to service or to a service-connected disability. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. 3.103(c)(2) requires that a RO official or VLJ who conducts a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. The transcript of the November 2012 hearing reflects the undersigned specifically noted that to establish service connection it must be shown you have a chronic disability and that it is related to service. The Veteran's testimony in response to the questions posed by the undersigned focused on the elements necessary to substantiate the current appellate claim; i.e., by his testimony he demonstrated that he is aware of the elements necessary to substantiate his claims, and what must still be shown. Factual background, Legal criteria and Analysis The Board has reviewed all of the evidence in the appellant's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). The Veteran's STRs show that he weighed 161 pounds on December 1971 service enlistment examination. In March 1973 he was seen for a rash between his legs; medication was prescribed. He denied a history of recent weight gain and skin disease in a report of medical history on separation in December 1975. On examination for separation in December 1975 his skin was normal on clinical evaluation. On March 1976 VA general medical examination the Veteran weighed 180 pounds. His skin was normal. The diagnosis was the general medical examination was essentially normal. Private medical records show the Veteran was seen in June 2001. It was noted he presented with a history of a non-healing papule on the left nasolabial sulcus that had been present for more than one year. He had not had any prior treatment. He underwent MOHS micrographic surgery. The postoperative diagnosis was basal cell carcinoma of the left nasolabial sulcus. He was seen by another private physician in February 2005. He related he had a skin cancer on his left cheek several years prior. He reported that about one month earlier, a lesion flared up under his left arm, but it had subsided. The assessments were suspicion of dysplastic nevi, actinically damaged skin, personal history of skin cancer, keratotic lesions of the nose and suspicion of squamous cell carcinoma in situ versus invasive. A pathology report reflects diagnoses of squamous cell carcinoma in situ and actinic keratosis. The Veteran was seen by a private physician in December 2005 for complaints relating to a rising PSA following a prostatectomy. It was noted he weighed 219 pounds. It was noted in March 2006 that the Veteran was receiving postoperative radiation therapy for residual prostate cancer after a radical prostatectomy. The physician stated that the combination of radical surgery, hormone therapy and pelvic radiation therapy can produce a significant number of side effects, including fatigue and weight gain. The examiner noted that fatigue was an acute side effect, which usually begins to improve at three weeks following completion of radiation therapy. He stated the fatigue factor was difficult to measure and predict. When seen by a private physician in September 2012, the Veteran weighed 225 pounds. In a statement dated October 2012, A.K. Balin, M.D., related he had treated the Veteran since February 2005. He noted the Veteran had had several skin cancers, precancerous lesions and irregular moles removed over the past few years. He cited a January 2004 article which noted military researchers said that veterans who were exposed to Agent Orange had a higher risk of skin cancer. Based on the article, Dr. Balin asserted he could not rule out that the Veteran's skin cancers and other skin issues were not caused by his exposure to Agent Orange. D.I. Lee, M.D. noted in October 2012 that Agent Orange exposure had been linked to an increased risk of developing soft tissue sarcomas. In October 2012, S. Arrigo, M.D., noted the Veteran had been controlled with androgen suppression and that he had experienced the anticipated side effects which included weight gain and fatigue. Service connection is in effect for prostate cancer, status post prostatectomy, rated 100 percent; major depressive disorder, rated 50 percent; allergic rhinitis, rated 0 percent; and erectile dysfunction, rated 0 percent. 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). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Fatigue and weight gain Service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The elements of a successful secondary service connection claim are: Evidence of a disability for which service connection is sought; a disability that is already service connected; and competent evidence that the service connected disability caused or aggravated the disability for which service connection is sought. The Board acknowledges the Veteran has apparently experienced weight gain and fatigue. These symptoms have been attributed to his treatment for his service-connected prostate cancer. In addition, it was reported on a VA psychiatric examination in September 2011 that the Veteran described having difficulty sleeping, and that he sometimes goes to work late because of his lack of sleep. It was noted his sleep problems had been going on for a number of years, and were connected to his depressive symptomatology and fear of dying. The Board also observes the Veteran denied any weight change on a VA examination for his prostate cancer in September 2011. As noted above, fatigue and weight gain represent symptoms, not disabilities. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.) Since no disability has been demonstrated, service connection on a direct or secondary basis is not for consideration. The term "disability" as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). There is no evidence of record suggesting any fatigue or weight gain the Veteran experiences causes any impairment of earning capacity. To the extent the Veteran's sleep problems result in fatigue, this is contemplated in the evaluation for his service-connected psychiatric disability. 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 present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes). The Board concludes, accordingly, there is no basis for a grant of service connection for either fatigue or weight gain. Scar, residual of excision of squamous cell carcinoma Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and a malignant tumor becomes manifest to a degree of 10 percent or more within one year following termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes; Hodgkin's disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 75 Fed. Reg. 53202 (August 31, 2010), 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which a veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). (VA recently its regulation regarding acute and subacute peripheral neuropathy, but the revisions have no applicability in this case, as such diagnosis is not shown.) The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 72 Fed. Reg. 32,395 (2007). The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that a veteran may not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a nonpresumptive direct-incurrence basis. During the hearing, the Veteran asserted he has a scar on his face due to the removal of a carcinoma. The Veteran's STRs show that he was treated on one occasion for a rash between his legs; medication was prescribed. In the STRs there are no other references to skin problems, and no indication of carcinoma.. His skin was evaluated as normal on service separation examination in December 1975. Postservice the Veteran was apparently first treated for skin problems in 2001, more than 25 years following his separation from service when a biopsy revealed basal cell carcinoma. He was subsequently treated for squamous cell carcinoma. He asserts his skin problems are due to his exposure to Agent Orange. The Board acknowledges the Veteran had service in Vietnam, and therefore is presumed to have been exposed to Agent Orange. However, the only skin disorder for which service connection may be established on a presumptive basis as due to exposure to Agent Orange is chloracne. [While certain cancers may be service connected on a presumptive basis as due to Agent Orange, squamous cell carcinoma is not among them.] There is no evidence in the record the Veteran has ever had chloracne. The Board may, nevertheless, grant service connection for the scar as a residual of excision of squamous cell carcinoma if it is affirmatively shown to be related to service/disease or injury therein. The Board acknowledges the statement from Dr. Balin to the effect he could not exclude Agent Orange as the cause of the Veteran's cancer. This comment, however, does not demonstrate there is any causal relationship between the Veteran's cancer (and the resultant scar) and service. It certainly does not establish that it is at least as likely as not due to service, to include exposure to Agent Orange therein. The Veteran's assertions that the residuals of an excision of squamous cell carcinoma are related to service, to include as due to exposure to Agent Orange therein, are not competent evidence in these matters. Laypersons are competent to provide opinions on some medical issues. However, the diagnosis and etiology of specific skin disorders fall outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In summary, the evidence of record establishes that the Veteran's scar, the residual of an excision of squamous cell carcinoma, became manifest many years after, and is not shown to be related to, his service. Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection for scar, residual of an excision of squamous cell carcinoma. ORDER Service connection for fatigue, claimed as secondary to a service-connected disability, is denied. Service connection for weight gain, claimed as secondary to a service-connected disability, is denied. Service connection for scar, residual of excision of squamous cell carcinoma, is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs