Citation Nr: 1333584 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-28 064A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for basal cell carcinoma on arms and back. 2. Entitlement to service connection for melanoma. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to March 1971, October 1976 to April 1979, January 1988 to September 1990, November 1990 to April 1991, December 1991 to April 1992, January 1996 to May 1996, May 1997 to August 1997, October 1998 to April 1999, and from March 2004 to August 2004, as well as during periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the RO in Atlanta, Georgia. In May 2012, the Board remanded the claim for additional development. FINDING OF FACT Basal cell carcinoma on the arms and back, and melanoma, are etiologically related to active duty service. CONCLUSION OF LAW Basal cell carcinoma on the arms and back (other than the right forearm) and melanoma were incurred due to active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran asserts that he has basal cell carcinoma on the arms and back and melanoma due to his service. He argues that he has the cancers as a result of his excessive exposure to the sun during his active service, to include during about two years of service in Vietnam. See Veteran's letters, dated in September and December of 2007. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, such as malignant tumors, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); malignant tumors and/or cancers are qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). The Veteran's service records include discharges (DD Form 214s) which show that his awards include the Bronze Star Medal with "V" device and gold star, the Navy Achievement Medal with "V" device and gold star, the Purple Heart with gold star, the Combat Action Ribbon, the Vietnam Service Medal with multiple stars, and the Vietnam Campaign Medal with "1960" device. His primary specialties included nine years as an infantry officer, and nine years as a scuba/parachute officer. The Veteran's personnel records indicate that he had extensive service in Vietnam, beginning in 1967, to include many combat operations, and 23 long-range patrols. Service records include two citations for awards based on valorous service with a reconnaissance unit. Service treatment records include multiple examination reports, dated between 1969 and February 2001, which show that the Veteran's skin was clinically evaluated as normal. A number of associated "reports of medical history" show that the Veteran denied a history of skin diseases, and "tumor, growth, cyst, cancer." A January 2003 examination report shows that his skin was clinically evaluated as normal, and that there was a surgical scar on the upper left back. An August 2004 examination report shows that his skin was clinically evaluated as normal, and that there was a right leg scar and a left shoulder scar. The associated "report of medical history" notes that the Veteran had undergone surgery to remove a malignant melanoma in February 2003, and that he was receiving periodic 6-month check-ups. He was also noted to have three squamous cell carcinoma cuts/surgery, and six basal cell carcinomas "froze" (i.e., treated with cryosurgery). Private treatment records show that on January 9, 2002, the Veteran was noted to have skin lesions, with a notation of melanoma. Later that month, he was diagnosed with both basal cell carcinoma (right forearm), and melanoma (left upper back). Both sites were excised, and in May 2002 they were reported to have healed well. Other private treatment reports show that the Veteran was noted have squamous cell carcinoma (SCC) of the right antecubital fossa (right arm) in May 2002, either BCC (basal cell carcinoma) or SCC of the left lower back in June 2004, rule out SCC left arm in June 2005, and SCC of the mid-back in April 2010. A VA examination report, dated in January 2005, shows that the Veteran reported that he had sustained extensive sun exposure during his service, to include service in desert environments, with multiple sunburns. He was noted to have a history of melanoma of the left upper back, and basal cell carcinoma of the right forearm, in January 2002. The reports multiple squamous cell carcinoma skin cancers after January 2002. On examination, the examiner noted scars of the left upper back, left upper shoulder, and two scars of the left arm near the elbow. The examiner concluded that the Veteran had a history of melanoma in situ, basal cell carcinoma, and squamous cell carcinoma, and stated that each of these conditions is related to sunlight exposure. She stated that the Veteran had an increased risk of being exposed to ultraviolet radiation during his military service. She concluded that while his skin cancers "are not directly caused from his military service, the fact that his military duty did require him to be outside for an extensive period of time did contribute to his development of these skin cancers." A VA skin disability benefits questionnaire (DBQ), dated in November 2012, shows that the Veteran was noted to have a history of melanoma, status post excision, and actinic keratosis, with both diagnoses having an onset in 2002. The examiner concluded that an opinion as to whether or not the Veteran's skin cancer was related to his service would require a resort to mere speculation. The examiner recognized that the medical literature supports the fact that sun exposure may be a risk factor or other possible cause for skin cancer. However, she added that it was also shown that sun damage to the skin accumulates over time, and that because it accumulates over time, it is the total lifetime exposure that increases the risk for most of skin changes due to sun exposure. Further, while she acknowledged that the Veteran served numerous periods of active duty, some of which were limited to several months in duration, the examiner noted that studies have indicated that more than half a lifetime's sun exposure usually happens before the age of 18. She also noted there was no credible evidence that the Veteran's in-service sun exposure was of any special intensity or duration than the sun exposure he has had at any other times in his life, and that the January 2005 examiner did not address any of the significant sun exposure described by the Veteran has having occurred before service, or post-service sun exposure which also occurred. The Veteran's current actinic keratosis were also found to be unrelated to his active service. The examiner noted that he had had treatment for actinic keratosis in the past with documented resolution. However, as the result of his fair skin and sun exposure he would likely continue to have new lesions. The Board notes that there is some question as to whether the Veteran's skin cancers were initially diagnosed/documented during a period of active service in 2002. In this regard, the Veteran's service records include a copy of his orders which show that he was involuntarily called to active duty for the period from January 6, 2002, to September 30, 2002. Orders, dated January 17, 2002, show that a 14-day delay was authorized. These orders were canceled in March 2002. The Veteran maintains that although his orders were canceled, he was still required to report for duty and to undergo medical testing. He maintains that he was unable to work as a civilian during the time that he thought he was recalled to active duty, before the recall was canceled in March 2002. He has submitted photocopies of airline tickets in support of his assertions, which show that he was scheduled to leave for Honolulu on January 6, 2002. The Board remanded the claims in May 2012 for an attempt to determine the Veteran's duty status in January 2002, i.e., the month he was initially diagnosed with the claimed conditions. While it appears that the Appeals Management Center made several attempts to develop this evidence, there is nothing to indicate that the Veteran's duty status was ever confirmed, and the December 2012 supplemental statement of the case makes no reference to his duty status in January 2002, or as to whether or not all required development had been completed. Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c) (2012); Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Nevertheless, despite the lack of development as to the Veteran's duty status in January 2002, which remains unclear, the Board finds that service connection is warranted. The Veteran is shown to have extensive service in Vietnam while on active duty, beginning in 1967, when he was about 19 years old, and ending in 1971. His duties during that time were in the infantry, and in a reconnaissance unit. He has asserted that he was exposed to intense sunlight during this time. The Board takes judicial notice that these duties and his service in the tropics of Vietnam likely required extensive exposure to the tropical sun. See Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (judicial notice may be appropriate for facts that are "not subject to reasonable dispute"). His statements are also consistent with the circumstances, hardships, and conditions of his combat service, and are presumed credible under 38 U.S.C.A. § 1154(b) (West 2002). Private treatment reports show that the Veteran has had carcinomas of both arms (other than the right forearm), and his back. The January 2005 VA examiner concluded that the Veteran had a history of melanoma in situ, basal cell carcinoma, and squamous cell carcinoma, and stated that each of these conditions is related to sunlight exposure. She stated that the Veteran had an increased risk of being exposed to ultraviolet radiation during his military service. She concluded that while his skin cancers "are not directly caused from his military service, the fact that his military duty did require him to be outside for an extensive period of time did contribute to his development of these skin cancers." The November 2012 VA DBQ notes, in part, that medical literature supports the fact that sun exposure may be a risk factor or other possible cause for skin cancer. The Board has considered the November 2012 VA opinion, which shows that the examiner concluded that she could not provide an opinion without resort to mere speculation. She also indicated that she disagreed with the January 2005 VA opinion. Her rationale for this disagreement contains a flawed rationale. The examiner stated that it is the total lifetime exposure that increases the risk for most of skin changes due to sun exposure, and that "there is no credible evidence that the sun exposure during active duty was of any special intensity or duration than the sun exposure he has had at any other times in his life." However, as previously discussed, extensive exposure to sunlight during the Veteran's first period of active duty is shown. The November 2012 VA examiner also stated that the January 2005 opinion was based on a history of prolonged sun exposure in service, but that it did not address any of the significant sun exposure described by the Veteran has having occurred before service, or post-service sun exposure which also occurred." However, the January 2005 VA examination report merely shows that the Veteran reported a history of "excessive sun exposure related to his job" which was not tied to any particular type of duty status; the Veteran did not report any sun exposure which he characterized as either pre- or post-service, other than the routine exposure he might have received. Accordingly, to the extent that the November 2012 examiner indicated disagreement with the January 2005 VA opinion, her rationale is afforded little probative value, and is insufficiently probative to warrant a denial of the claims. Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Given the foregoing, the Board finds that the evidence is at least in equipoise, and that affording the Veteran the benefit of all doubt, service connection for basal cell carcinoma on arms (other than the right forearm) and back, and for melanoma, is granted. The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). In this case, as the Board has fully granted the Veteran's claims for service connection, the Board finds that a detailed discussion of the VCAA is unnecessary. Any potential failure of VA in fulfilling its duties to notify and assist the Veteran is essentially harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Finally, the Board notes that the RO has framed one of the issues as "basal cell carcinoma on the arms and back." The Board's May 2012 decision determined, in pertinent part, that a claim for an initial compensable rating for residuals of squamous cell cancer, including a right forearm scar, was prohibited by law, after determining that service connection had been severed by an unappealed RO decision, effective May 1, 2010. There was no appeal, and the Board's decision became final. See 38 U.S.C.A. § 7105(b) (West 2002). Therefore, the claim for "basal cell carcinoma on the arms and back" does not include the right forearm. ORDER Service connection for basal cell carcinoma on arms (other than the right forearm) and back, and for melanoma, is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs