Citation Nr: 1339458 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 11-28 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a skin disability (including basal cell carcinoma, squamous cell carcinoma, and actinic keratosis) claimed as skin cancer, to include as due to exposure to herbicides in service. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDING OF FACT The most probative evidence does not demonstrate that the Veteran has a skin disability that is attributable to active service. CONCLUSION OF LAW The criteria for service connection for skin disorder are not met. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A June 2009 VA letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson at 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration (SSA). 38 C.F.R. § 3.159(c)(2). There has been no VA examination for the purposes of determining entitlement to service connection for a skin disorder. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there is otherwise sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5013A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, the Board finds that a current VA examination to determine whether the Veteran's skin disorder is the result of his military service is not necessary to decide the claim. Although the Veteran is currently diagnosed with a skin disorder, there is no competent and credible evidence of an in-service event or an association with service, as will be discussed in greater detail below. The most probative evidence of record weighs against any sign of an event or occurrence in service to which the disabilities could be linked. This evidence is insufficient to require an examination and obtain an opinion. There is no indication in the record that any evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Legal Criteria Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. §3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection on a direct basis, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises, and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Once lay evidence is found to be competent, the Board has a duty to address the credibility and weight to be given to the evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 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. Analysis In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for a skin disability, so the appeal must be denied. The evidence does show that there is a current disability, as there is evidence that the Veteran has been variously diagnosed with basal cell carcinoma, squamous cell carcinoma, and actinic keratosis. There is also presumption of an in-service exposure to herbicides, as the Veteran's DD214 indicates that he served overseas in Vietnam during the applicable period prescribed by 38 C.F.R. § 3.307(a)(6)(iii). Therefore, the issue turns upon the finding of a nexus. The Board notes that, although the Veteran is presumed to have been exposed to herbicides during service, a finding of service connection by presumption is not warranted. The Veteran has been diagnosed with basal cell carcinoma, squamous cell carcinoma, and actinic keratosis. However, these are not among the types of skin conditions contemplated for presumption under 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. See Notice, 72 Fed. Reg. 32,395-32,407 (June 12, 2007); see also Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); see also Notice, 75 Fed. Reg. 32,540 (June 8, 2010); Notice, 75 Fed. Reg. 81,332-81,335 (December 27, 2010); Notice, 75 Fed. Reg. 81,332-81,335 (December 27, 2010). As the Board finds that the Veteran is not entitled to service connection on the basis of presumption, the Veteran must prove that a disorder resulting in disability is, in fact, causally linked to such exposure. See Brock, 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 service treatment records (STRs) are absent for any documentation or notations related to the Veteran's skin. The separation report of medical examination shows that the Veteran's skin was clinically evaluated as normal, and that the Veteran denied any history of skin disease. Decades after service, in October 2003, the Veteran's physician noted diffuse actinic change in the Veteran's forearm. Later, in December 2003, the Veteran was diagnosed with squamous cell carcinoma in his right hand, and advanced actinic keratosis on his left hand. Subsequent private medical records continue to reveal the Veteran's struggle with squamous cell carcinoma and actinic keratosis, as well as a diagnosis of basal cell carcinoma in May 2011, and subsequent treatment in June 2011. In February 2007, the Veteran's physician noted the Veteran's herbicide exposure as part of his patient history, but does not give an etiological opinion indicating that the Veteran's skin disorder is at least as likely as not the result of that herbicide exposure. There is no competent medical evidence providing a nexus between his current skin disorder and his service in Vietnam. The Board acknowledges the Veteran's opinion that his skin disorders are related or caused by exposure to herbicides during his period of active service. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As to a nexus opinion relating any carcinoma or other skin disorder to active service, including exposure to herbicides, the Board finds that the etiology of a basal cell carcinoma, squamous cell carcinoma, or actinic keratosis is a complex medical question and the Veteran is not competent to provide an opinion as to its etiology. See also Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran's service treatment records (STRs) are absent for any complaints, diagnoses, or treatment for skin disabilities. The Veteran has submitted his own statement as well as a corroborating statement from a fellow servicemember asserting that he sought treatment for a skin rash during his service in Vietnam. The Veteran and his fellow servicemember are lay people who are competent to relate observation of a skin irregularity such as a rash. See McCartt v. West, 12 Vet. App. 164, 167-68 (1999). However, these assertions are inconsistent with the objective medical evidence. Upon his separation from service, the Veteran's own report of medical history indicated that he had never had any skin diseases. His separation examination also indicated that his skin was normal. There is no record of the Veteran complaining of or seeking treatment for any skin disorder until October 2003, over thirty years after exiting service. Normal medical findings, the Veteran's denial of any history of skin diseases at the time of separation from service, as well as the absence of any medical record of a diagnosis, complaint, or treatment for many years after service are probative evidence against the claim. Maxson v. Gober, 230 F.3d 1333 (Fed. Cir. 2000) (It is proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board where it found that the Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of a disability). In light of the absence of skin complaint shown in his service records, contradictory negative history of skin disease reported on separation from service, and the length of time between service and treatment for skin disability, the Board finds that the objective medical evidence of record outweighs the credibility of the Veteran and his fellow servicemember's reports of in-service onset of symptomatology. Such records are more reliable, in the Board's view, than the unsupported current assertions which contradict the denial of such symptoms in a medical history report completed contemporaneous with service. See Cartright v. Derwinski, 2 Vet. App. 24. 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). The Veteran is not entitled to a VA examination in this case. Any medical opinion linking such disability to the Veteran's military service would necessarily be based upon the unsubstantiated history provided by the Veteran decades following discharge from service and in contradiction with the medical evidence of record. The record reveals that the Veteran has a current disability. However, as discussed above, the Veteran's disability is not one of those subject to presumptive service connection. The service treatment records are absent for any notations or documentation related to the Veteran's skin. The most probative evidence of record does not indicate any continuity of symptomatology. Therefore, the only link between the Veteran's disability and his service is the Veteran's belief that his cancer is related to in-service exposure to herbicides. The first prong of the McLendon test (current disability) requires "competent" evidence; the third prong of the test only requires "evidence" that indicates an association with service. Although VA must consider the lay evidence and give it whatever weight it concludes the evidence is entitled to, a "conclusory, generalized lay statement" that an event or illness during service caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran is not considered competent to provide an opinion as to the etiology of his basal cell carcinoma, squamous cell carcinoma, and actinic keratosis as this is a complex medical question. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board recognizes that the threshold for finding a link between a current disability and active service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). Nonetheless, the most probative evidence in this case does not support the scheduling of a VA examination. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for skin disorder is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (b), 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a skin disorder, to include as due to exposure to herbicides in service, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs