Citation Nr: 1339877 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 11-20 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for skin cancer. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from June 1964 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for skin cancer. The Veteran appealed the denial of service connection in this decision, and the matter is now before the Board. The Veteran testified via video conference from the RO in Montgomery, Alabama before the undersigned Acting Veterans Law Judge in July 2013. Consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system. The documents within the system do not include any non-duplicative materials pertinent to the present appeal with the exception of a copy of the transcript from the July 2013 hearing which been considered as part of the present appeal. FINDING OF FACT The Veteran did not sustain a disease or injury related to skin cancer in service, and the Veteran's recurrent skin cancer is not otherwise related to service. CONCLUSION OF LAW Skin cancer was not incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. A notice letter was sent to the Veteran in April 2009, prior to the initial adjudication of the increased rating claim on appeal. Notice sent to the Veteran included descriptions of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Moreover, in a hearing before the undersigned, the presiding Acting Veterans Law Judge clarified the issue on appeal and discussed potentially relevant additional evidence that the Veteran may submit in support of the claim, to include records of the Veteran's initial skin cancer treatment in 1970. These actions by the undersigned satisfy the obligations imposed by 38 C.F.R. § 3.103. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). VA also has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). The Board finds that VA has satisfied its duty to assist by acquiring service records as well as records of private treatment. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. During the July 2013 hearing the Veteran stated he attempted to acquire records of treatment in 1970, relating to his first episode of skin cancer, however the records were no longer available as they had been destroyed. VA has not made additional attempts to locate these records as such an attempt would be unproductive given that the records were destroyed. Since the issuance of the most recent statement of the case new evidence has been added to the claims file. However, a review of the new evidence shows that it is immaterial to the immediate appeal, and thus the issuance of a supplemental statement of the case is not warranted prior to adjudication by the Board. In disability compensation claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service (or, by analogy, to a service-connected disability), the Court has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). In this case, the record clearly shows that the Veteran has a long history of recurrent skin cancers which, according to the Veteran's testimony, began in 1970. The Veteran contends that the claimed disability was caused either by sun exposure during service or exposure to Agent Orange while deployed to the Republic of Vietnam, and the record confirms that the Veteran did in fact serve in Vietnam and was exposed to sunlight while there. Further, that the Veteran himself contends a link between his skin cancer and service is evidence indicating that the disability may be associated with service. Thus the first three prongs of McLendon are met. Nonetheless, the Board finds that even without a VA examination, the competent evidence of record is sufficient to decide the Veteran's. Specifically, as discussed below, the record includes a pair of medical opinions from a private physician, dated October 2009 and July 2010. In these opinions, the private physician opined as to the etiology of the claimed skin disorder, specifically relating it to lifetime sun exposure rather than the Veteran's in-service exposure to either sun or Agent Orange. Accordingly, as the Board has been presented with competent evidence of record to decide the claim, there is no duty to seek further examination - this time by a VA healthcare provider. Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of the claim and no further notice or assistance is required. Service Connection for Skin Cancer Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). The claimed disorder at issue, described as "skin cancer," has been productive of histories of basal cell carcinoma, nonmelanoma, melanoma, and benign neoplasms. None of the foregoing disorders are listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that the continuity provisions of 38 C.F.R. § 3.303(b) apply only to those disease listed under 38 C.F.R. § 3.309(a)). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a) (2013). The Veteran served in Vietnam and is thus presumed to have been exposed to herbicide agents. For any veteran exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) (2013) are otherwise met. However the diseases listed do not include basal cell carcinoma, nonmelanoma, melanoma, or benign neoplasms. See 38 C.F.R. § 3.309(e) (2013). Thus, the presumptive provisions related to herbicide exposure are not for application. Nonetheless, where the evidence does not warrant presumptive service connection, an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). Again, the Veteran contends that recurrent skin cancers were caused either by sun exposure during service or exposure to Agent Orange during service. Exposure to Agent Orange is presumed based on the Veteran's service in Vietnam, and to the extent that sun exposure is capable of lay observation, the Board finds the Veteran's endorsement of such exposure competent and credible. Nonetheless, establishing a connection from either such exposure to his post-service skin symptomatology is a complex medical determination which is not capable of lay observation. Thus the Veteran's assertions to that effect are not competent and of no probative value. The Veteran's service treatment records reveal no complaints or treatment referable to the skin and on separation examination in June 1967 the Veteran's skin was normal. Following separation, the Veteran testified that he was treated for basal cell carcinoma of the left cheek "in 1970, probably February." Since that time the Veteran has reported having three melanomas, with over 200 instances of cancer. The Veteran testified during the July 2013 hearing before the undersigned that following separation from service he became a law enforcement officer -eventually working as a highway patrol officer for 30 years, though the last 10 years of that was spent as an instructor. The Veteran denied significant post-service sun exposure. Post-service records confirm a history cancer removal including basal cell carcinoma, nonmelanoma, and melanoma, as well as benign neoplasms and actinic keratoses. In a pair of letters from October 2009 and July 2010, the Veteran's private treating healthcare provider opined that the Veteran's "sun damage is a cumulative result from heredity and lifetime sun exposure." The letter went on to note that while sun exposure during the Veteran's time in Vietnam may contribute to the Veteran's extensive skin damage, such in-service exposure "cannot solely be determined as the full cause of his skin cancers." Based on the foregoing, the Board finds that the Veteran's history of skin cancers is not related to service. Specifically, the private opinions specifically state that the Veteran's skin cancers are related to a combination of family heredity and lifetime sun exposure. With regard to any link to service, the opinion is worded in such a way to suggest that any link between in-service sun exposure as the cause of the Veteran's claimed skin cancer would be speculative. Thus, to the limited extent that the private opinions are ment to suggest any such association, the Board finds that conclusion to be unsupported and of no probative value in establishing service connection in this case. See Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Of far greater probative value are the definitive conclusions that the Veteran's skin cancers are the result of a combination of family background and sun exposure over his lifetime. The Board concedes that part of the Veteran's lifetime exposure includes his in-service exposure, however such exposure amounts to only three years out of a sixty-seven year lifespan. And even at the time of initial onset in 1970 sun-exposure during service amounted to three years out of twenty-four. Based on the foregoing, the Board finds that the claimed skin disorder was not incurred in service, did not begin until several years after separation from service, and is not related to service. ORDER Service connection for skin cancer is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs