Citation Nr: 1339013 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 07-29 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for skin cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970, with service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO). In August 2010, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In October 2010 and June 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC for further development. A complete analysis of the RO's compliance with the October 2010 and June 2012 remand directives is included in the Duties to Notify and Assist section below. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. FINDING OF FACT Skin cancer was not manifested during the Veteran's active service or for many years thereafter, nor is skin cancer otherwise related to such active service, to include as due to herbicide exposure. CONCLUSION OF LAW The criteria for service connection for skin cancer, to include as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303 , 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VA is also required to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed a letter in April 2008 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The April 2008 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file and VA Medical Center and private treatment notes have been obtained. The Board acknowledges that pursuant to the October 2010 Board remand, Social Security Administration (SSA) records and additional VA treatment records were obtained and the Veteran was afforded a VA examination in February 2011. Further, pursuant to a subsequent June 2012 Board remand, an addendum VA opinion was obtained in July 2012. The Board notes that the February 2011 VA examination was conducted in conjunction with a review of the claims file, and the examiner provided an explanation of rationale for the opinion stated, which was supplemented by the July 2012 addendum opinion, and therefore, the Board finds the examinations adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board finds that there has been substantial compliance with the remand directives and no additional remand is required and the Veteran will not be prejudiced by the Board adjudicating the claim at this time. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Also, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the August 2010 Board hearing, the VLJ fully explained the issue on appeal, and asked questions focused on disability in question, specifically as to the nature and etiology of the Veteran's skin cancer. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked, or was outstanding, that might substantiate the claim; no such evidence was identified by the Veteran. The Board notes that neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Board finds that all necessary development has been accomplished and therefore appellate review of the claim addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and pertinent postservice treatment records. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria and Analysis The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2013). Also, absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all Veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to a herbicide agent (to include Agent Orange) 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 that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). 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. VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research. See, e.g., 68 Fed. Reg. 27630-27641 (May 20, 2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (Nov. 2, 1999). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303. The Veteran asserts that his skin cancer is related to his active service; specifically, to herbicide exposure sustained during his service in the Republic of Vietnam. The Board notes that the Veteran's disability includes a 1993 diagnosis of basal cell carcinoma and a 2007 diagnosis of squamous cell carcinoma. The record does not reflect, and the Veteran has not asserted, that his skin cancer began during service or until many years after service. A review of the Veteran's service treatment records (STRs) are silent for any complaints or diagnoses related to skin cancer. On April 1970 separation examination, the Veteran's skin was found to be clinically normal and he did not report any history of skin disease. The earliest indication that the Veteran was suffering from any form of skin cancer are 1993 treatment records showing that he had a spot removed from his right side that was determined to be basal cell carcinoma. Private treatment records from November and December 1993 show that the Veteran was seen for complaints of red patches on his right side, chest, and back. He reported that these spots had been present for approximately ten to twelve years. On examination, it was noted that there was one 3.3 centimeter round scaly, erythematous, atrophic plaque on the right side of the Veteran's abdomen. The Veteran was given a diagnosis of Tinea Versicolor and a biopsy of the erythematous, atrophic, plaque on his right side was ordered to rule out basal cell carcinoma. A subsequent treatment record shows that after biopsy, the Veteran was diagnosed with basal cell carcinoma (superficial type), and the spot on his right side was surgically removed in December 1993. There is no indication from these treatment records that the Veteran suffered from any recurrence of the basal cell carcinoma or that the basal cell carcinoma was ever etiologically related to the Veteran's active service, to include exposure to herbicides therein. Of record are extensive VA treatment notes that indicate the Veteran receives treatment for numerous medical conditions. These records show that in July 2006 he complained of a spot on his forehead that he wanted to have "checked." He reported that the spot had been present for approximately six months and that he had tried various methods to attempt to heal the spot, without success, and that it was sometimes itchy. He reported a history of basal cell carcinoma to his right abdomen. At that time, the Veteran was noted to have an indurated, yellowish lesion with surrounding erythema on his right forehead and he was prescribed Efudex cream. November 2007 treatment records from Derm-One show that the Veteran was referred by the VAMC for evaluation of the lesion on his right forehead. At that time, it was noted that the Veteran had a history of basal cell carcinoma, but no other history of skin disease. After examination, the Veteran was noted to have an unspecified neoplasm of the right forehead, of which, a shave biopsy was conducted. A December 2007 treatment record shows that the biopsy results revealed squamous cell carcinoma and that the Veteran elected to undergo Mohs' surgery of the lesion. The Veteran was seen in January 2008 for a surgical repair of a defect created by the Mohs' surgery of the squamous cell carcinoma. There is no evidence from these records that the squamous cell carcinoma recurred or that the Veteran's treatment providers indicated that such was etiologically related to his active service, to include exposure to herbicides therein. The remaining VA treatment records are silent for any complaints of or treatment for skin cancer. The Veteran was afforded a VA examination in February 2011. On examination, the examiner noted that there was no lesion on the Veteran's forehead and the skin was well healed. Examination of the Veteran's abdomen revealed a superficial scar, but no cancerous lesions. The examiner diagnosed skin cancer status post excision and noted that the skin condition was occupying zero percent of the Veteran's total body surface and zero percent of the exposed body surface area. The examiner opined that the Veteran's skin cancer was not related to his active service, to include his exposure to herbicides therein. The examiner explained that on separation examination in April 1970, the Veteran had a normal skin examination, with no mention of skin cancer. Further, the examiner noted that skin cancer was not considered a presumptive condition as due to herbicide exposure per recognized literature. Therefore, the examiner opined that the Veteran's skin cancer was not related to his active service, to include herbicide exposure therein. In July 2012, an addendum to the February 2011 VA opinion was obtained. The examiner was asked to further explain the rationale for his opinion that the Veteran's skin cancer was not related to his active service, to include herbicide exposure therein. In the July 2012 addendum, the examiner explained that when forming his February 2011 opinion, the examiner considered medical literature and risk factors for skin cancer, both environmental and genetic. The examiner explained that sun exposure is the most important environmental cause of skin cancer and most risk factors relate directly to a person's sun exposure habits or susceptibility to solar radiation. Risk factors discussed by the examiner included fair skin, light-colored eyes, red hair, northern European ancestry, and older age. The examiner stated that it was his opinion that the Veteran had all of those risk factors for the development of skin cancer. Associated with the claims file are SSA records which show the Veteran filed a claim for SSA disability benefits in November 2002. However, these records provide no indication that the Veteran's skin cancer was etiologically related to his active service, to include herbicide exposure therein. Also of record are several lay statements from the Veteran, as well as testimony provided at his August 2010 Board hearing, in which he has asserted that his skin cancer is related to his exposure to herbicides during active service. In several statements of record, the Veteran reported that he was working with empty barrels that had previously been filled with herbicides while in the Republic of Vietnam, and sustained chemical burns to his side and face; the areas where he has now developed skin cancer. However, this is not supported by the Veteran's STRs associated with the claims files; as noted above, the Veteran's April 1970 separation examination shows that his skin was normal and there is no indication he sought treatment for chemical burns while on active service. Based on the evidence of record, the Board concludes that entitlement to service connection for skin cancer is not warranted. While the record reflects that the Veteran served in the Republic of Vietnam during the Vietnam War, and is therefore presumed to have been exposed to herbicides, the evidence does not show that his diagnosis of skin cancer might be related to such exposure. Skin cancer, is not a disorder listed in 38 C.F.R. § 3.309(e), and therefore is not presumed to be related to herbicide exposure. Furthermore, the record contains no competent and probative evidence indicating a relationship between the Veteran's in-service exposure and his diagnosed skin cancer, and neither the Veteran, nor his representative, has offered any such evidence. Further, the February 2011 VA examiner opined, and further clarified in a July 2012 addendum, that the Veteran's skin cancer was not related to his active service, to include his exposure to herbicides therein. The examiner explained that the Veteran's skin was normal on separation, and in the July 2012 addendum, the examiner noted that it was more likely the Veteran's skin cancer was caused by his genetic risk factors. Additionally, the Board notes that the Veteran's skin cancer was not first diagnosed until 1993, 23 years following separation from active service. See Maxson, 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). Therefore, the Board finds that entitlement to service connection for skin cancer cannot be granted. The Board has also considered the Veteran's assertions that his skin cancer is related to his active service; specifically to his exposure to herbicides therein. The Board notes that a lay person may speak as to the existence of a disease with "unique and readily identifiable features" that is "capable of lay observation," or to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has asserted that his skin cancer is related to exposure to herbicides during active service from when he was handling empty barrels, which he reported had been previously filled with herbicides. The Board finds that even if the Veteran's assertions regarding the empty barrels during active service are accurate, and they had in fact previously been filled with herbicides, a connection or etiology between any such exposure and his diagnosis of skin cancer is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his skin cancer, however sincere, is not competent evidence and is entitled to low probative weight. As there is no evidence that the Veteran's skin cancer had its onset in service or for many years after service or that it was caused by or related to his exposure to herbicides, entitlement to service connection for skin cancer must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for skin cancer, to include as due to herbicide exposure, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs