Citation Nr: 1342907	
Decision Date: 12/26/13    Archive Date: 01/07/14

DOCKET NO.  08-19 392	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas



THE ISSUE

Entitlement to service connection for melanomas, squamous cell carcinoma and actinic keratosis of the left hand, back, and left side of neck, to include as due to herbicide exposure. 



REPRESENTATION

Appellant represented by:	Texas Veterans Commission



ATTORNEY FOR THE BOARD

T. Mainelli, Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from September 1967 to August 1969.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

This claim was previously remanded by the Board in February 2010 and May 2011 in order for additional evidentiary development to be conducted.  The requested development has been completed, and the case has been returned to the Board for further appellate review.

After reviewing the Veteran's contentions in light of the medical evidence of record, the Board has rephrased the claim on appeal to include a diagnosis of actinic keratosis (claimed as premalignant tumors) and squamous cell carcinoma (claimed as skin cancer).  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).

The Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process and which will be considered in the evaluation of this claim.


FINDING OF FACT

The evidence of record raises a reasonable doubt as to whether the Veteran's malignant melanoma, squamous cell carcinoma and actinic keratosis have been caused by excessive sun exposure during military service.


CONCLUSION OF LAW

Resolving doubt in favor of the Veteran, the criteria for entitlement to service connection for melanomas, squamous cell carcinoma and actinic keratosis of the left hand, back, and left side of neck have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks to establish his entitlement to service connection for malignant melanoma first treated in 1997.  He also claims entitlement to service connection for skin cancer in general, as well as premalignant lesions.  

The Veteran describes himself as a blonde, fair-skinned, blue-eye male of Northern European descent who experienced unprotected excessive sunlight exposure to his upper body and face during his tour of duty in the Republic of Vietnam.  He has submitted shirtless pictures of himself from Vietnam and describes instances of sunburn in service.  At the end of his tour of duty in Vietnam, the Veteran described his hair as being sun bleached and his skin being very dark.  He reports peeling of dark skin on his arms, back, neck, forehead and ears which occurred for several months after his Vietnam service.  A statement from the Veteran's spouse attests to her personal observations of his skin problems upon returning from Vietnam.  See September 2007 lay statement from S.C.  

Service connection is established for 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 periods of active wartime service.  38 U.S.C.A. § 1110.  Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In general, service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). 

The Veteran claims that his malignant melanoma, squamous cell carcinoma and actinic keratosis results from herbicide exposure during active service.  As the Veteran served in Vietnam during the Vietnam War, he is presumed to have been exposed to an "herbicide agent" - specifically, 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.  38 U.S.C.A. § 1116(a)(4); 38 C.F.R. § 3.307(a)(6)(i).  However, the Veteran's diagnosed skin disorders are not recognized by VA as being due to herbicide exposure.  38 C.F.R. § 3.309(e).  Accordingly, service connection for the Veteran's claimed skin disorders, as due to herbicide exposure, is not warranted, given the Veteran's specific diagnoses.  

Nonetheless, the Veteran could still establish his entitlement to service connection for these skin disorders as due to herbicide exposure with competent medical nexus evidence.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C.A. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

The Veteran does not contend, and the evidence does not suggest, that his diagnosed skin disorders manifested until many years after his discharge from military service.  Thus, the dispositive issue on appeal is whether there is a nexus between his in-service sunlight exposure and his malignant melanoma, squamous cell carcinoma and actinic keratosis manifested many years later.  38 C.F.R. § 3.303(d); Shedden, 381 F.3d at 1167.

In support of his claim, the Veteran has submitted two medical articles describing the risk factors for melanoma.  One article states that the great majority of skin cancers, including melanoma, are caused by overexposure to two different kinds of ultraviolet (UV) radiation - UVA radiation which may cause skin damage which can lead to skin cancer or UVB radiation which causes sunburns which could impair the genetic material controlling cell division, potentially leading to cancer.  Another risk factor includes people with light or fair skin complexions, particularly those who have had exposure to UV (particularly UVB) radiation.  Other risk factors include severe sunburn, dysplastic nevus and other atypical moles, a family history of melanoma, advancing age, weakened immune systems and other rare skin conditions such as xeroderma pigmentosum.

Additionally, the Veteran has submitted a private opinion from Dr. T., a Diplomate of the American Board of Dermatology, who accepted the Veteran's history of excessive sun exposure while in Vietnam, and stated that "[u]ndoubtedly there is some relation with his exposure to his recurring problems with skin cancers and premalignant lesions."

On the other hand, a VA physicians' assistant (PA) in March 2010 first provided an opinion that the Veteran's current melanoma was less likely than not related to the military based on the fact that the separation examination indicated no history of skin problems.  In an addendum dated June 2011, which addressed the Veteran's reported history of sun exposure and skin problems, the PA stated that the Veteran's service treatment records reflected no information concerning overexposure to the sun or dead skin sloughing off the Veteran's body, and that it would be mere speculation to say that exposure to the sun in Vietnam caused his melanoma and actinic keratosis 30 years later.

The Board finds that the evidence for and against this claim to be, at the very least, in relative equipoise.  The Veteran is competent to report the events that occurred during service, as well as the onset, nature, and severity of his symptoms during service.  See Layno v. Brown, 6 Vet. App. 465 (1994).  The Veteran reports a history of excessive, unprotected sun exposure while in Vietnam, which is consistent with his known circumstances of service and his personal pictures of being shirtless while in Vietnam.  See 38 U.S.C.A. § 1154(b).  His report of having a fair complexion is corroborated by his photographs, as well as the descriptions of his hair and eye color on his entrance and separation examinations.  His report of having sun bleached hair and dark skin after returning from Vietnam is also corroborated by the other competent lay evidence of record.  Thus, the Board finds as an underlying factual predicate that the Veteran, who has a fair complexion, was exposed to unprotected overexposure to the sun in service.

The private dermatology opinion states in unequivocal terms that the Veteran's history of skin cancers and premalignant lesions "[u]ndoubtedly" bears some relation to his military sun exposure.  This opinion is consistent with the medical articles which posit that excessive sun exposure, particularly with fair complexioned individuals, are risk factors for skin cancers.  The Board has no doubt that this private dermatologist is aware of the risk factors for skin cancer and the Board finds probative that the private dermatologist considered the Veteran's reported medical history.  Notably, there is no indication or allegation that the private dermatologist was not fully aware of all relevant facts in this case or that he misstated any relevant fact.  

The VA PA opinion states that it would be mere speculation to say that exposure to the sun in Vietnam caused his melanoma and actinic keratosis 30 years later.  However, the VA PA does not provide any explanation as to why the particular risk factors in this case, i.e., a fair complexioned Veteran who had excessive sun exposure in service, could not result in the Veteran's skin cancers and actinic keratosis.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that the probative value of a medical opinion is reduced when the examiner does not support his/her conclusion with an analysis that the Board can consider and weigh against contrary opinions).

In considering the evidence of record, the Board finds that the medical evidence of record for and against the claim is, at the very least, in relative equipoise.  Resolving doubt in favor of the Veteran, the claim of entitlement to service connection for melanoma, squamous cell carcinoma and actinic keratosis is granted.

As this decision resolves all matters in favor of the Veteran, any potential error on the part of VA in notifying or assisting the Veteran regarding the claim on appeal has been rendered harmless.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

ORDER

Service connection for melanomas, squamous cell carcinoma and actinic keratosis of the left hand, back, and left side of neck is granted.



____________________________________________
A.J. Turnipseed
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs