Citation Nr: 1416805 Decision Date: 04/15/14 Archive Date: 04/24/14 DOCKET NO. 10-40 590A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to service connection for melanoma scarring, including as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from August 1959 to August 1979. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the RO in Nashville, Tennessee, which, in pertinent part, denied service connection for the combined issue of precancerous tumors of the left facial cheek and scars from melanoma on the back. This case was previously before the Board in November 2012 where, in pertinent part, the Board remanded the issue of service connection for precancerous tumors of the face and scalp and melanoma scars on the back for a VA examination and opinion concerning the etiology of any scarring related to the precancerous tumors and melanoma. The Board finds that there has been substantial compliance with the directives of the November 2012 remand. The Veteran received VA skin and scar examinations in February 2013. The examination reports are of record. The examination reports reflect that the VA examiner reviewed the record, conducted an in-person examination, and rendered the requested opinion. As such, an additional remand to comply with the November 2012 directives is not required. Stegall v. West, 11 Vet. App. 268 (1998). Based upon the findings of the VA examiner, in March 2013 the RO granted service connection for residuals of precancerous tumors of the forehead and cheeks, and continued the denial of service connection for melanoma scars on the back. As such action was a complete grant of the Veteran's claim for service connection concerning the precancerous tumors, the only issue remaining on appeal before the Board is entitlement to service connection for melanoma scarring, including as due to herbicide exposure. Further, as the evidence of record, including the Veteran's January 2012 Travel Board hearing testimony, indicates that the Veteran may have melanoma scarring on other parts of his body, the Board has broadened and reframed the issue in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The Veteran testified before the undersigned Veterans Law Judge at a January 2012 Travel Board hearing in Nashville, Tennessee. The hearing transcript has been associated with the record. The Board has reviewed the physical claims file and both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam while on active duty and was exposed to Agent Orange. 2. The Veteran is currently diagnosed with scarring due to melanoma removal. 3. Melanoma scarring is not a disability for which presumptive service connection based on exposure to herbicides can be granted. 4. The currently diagnosed scarring due to melanoma removal is not related to active service. CONCLUSION OF LAW The criteria for service connection for melanoma scarring have not been met. 38 U.S.C.A. §§ 1110, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313, 3.326(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In November and December 2009, VA issued the Veteran VCAA notice which informed him of the evidence generally needed to support a claim of service connection and the assignment of a rating and effective date for an initial award of service connection, what actions he needed to undertake, and how VA would assist him in developing his claim. The notices were issued to the Veteran prior to the March 2010 rating decision from which the instant appeal arises. The issue on appeal was readjudicated in the September 2010 statement of the case (SOC) and the October 2011 supplemental statement of the case (SSOC); therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the duty to assist in this case, in November 2012 the issue on appeal was remanded to obtain VA skin and scar examinations. The Veteran was afforded such VA examinations in February 2013. The examination reports are of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed above, the VA examination reports reflect that the VA examiner reviewed the record, conducted an in-person examination, and rendered an opinion. As such, an additional remand is unnecessary. Stegall, 11 Vet. App. 268. All relevant documentation has been secured and all relevant facts have been developed. VA has received private medical documentation concerning the Veteran's melanoma scarring. There remains no question as to the substantial completeness of the appeal for service connection for melanoma scarring, including as due to herbicide exposure. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above. Service Connection for Melanoma Removal Scarring Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active 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). 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). In the instant matter, the Veteran is not seeking service connection for melanoma, but for melanoma scarring. As melanoma scarring is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2013), the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply to the issue of service connection for melanoma scarring. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). At the January 2012 Travel Board hearing, and in various other lay statements, the Veteran advanced that he was entitled to service connection for the residual scarring caused by the removal of melanoma from his back and arms as he believed that the melanoma was caused by his exposure to Agent Orange in the Republic of Vietnam. At the outset, the Board notes that the Secretary of VA has published a list of specific conditions for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted. As of May 2008, these included cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), or nasal cavity (including ears and sinuses); cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; esophageal cancer; stomach cancer; colorectal cancer (including small intestine and anus); hepatobiliary cancers (liver, gallbladder and bile ducts); pancreatic cancer; bone and joint cancer; melanoma; non-melanoma skin cancer (basal cell and squamous cell); breast cancer; cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); urinary bladder cancer; renal cancer; cancers of brain and nervous system (including eye); endocrine cancers (thyroid, thymus, and other endocrine); leukemia (other than chronic lymphocytic leukemia (CLL)); cancers at other and unspecified sites; neurobehavioral disorders (cognitive and neuropsychiatric); movement disorders (including Parkinson's disease and amyotrophic lateral sclerosis (ALS)); chronic peripheral nervous system disorders; respiratory disorders; gastrointestinal, metabolic, and digestive disorders (changes in liver enzymes, lipid abnormalities, and ulcers); immune system disorders (immune suppression, allergy, and autoimmunity); ischemic heart disease; circulatory disorders (including hypertension); endometriosis; effects on thyroid homeostasis; certain reproductive effects, i.e., infertility, spontaneous abortion, neonatal or infant death and stillbirth in offspring of exposed people, low birth weight in offspring of exposed people, birth defects (other than spina bifida) in offspring of exposed people, childhood cancer (including acute myelogenous leukemia) in offspring of exposed people; and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 75 Fed. Reg. 32540-03 (2010). As melanoma is not entitled to presumptive service connection due to exposure to Agent Orange in the Republic of Vietnam, the Board finds that scarring caused by such melanoma is also not entitled to presumptive service connection. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997); therefore, the Board has also considered whether direct service connection is warranted for melanoma scarring. The Veteran is currently diagnosed with scarring due to melanoma removal. This disability was diagnosed by a VA examiner at a February 2013 VA skin and scar examination. Further, as the Board finds the Veteran served in the Republic of Vietnam while on active duty, he is presumed to have been exposed to the herbicide Agent Orange; therefore, the Board finds the existence of a disease or injury in service. The Board finds that the weight of the evidence, both lay and medical, preponderates against a finding that the Veteran's melanoma scarring is related to active service. A service treatment record dated December 1975 conveys that the Veteran expressed concerns that lesions present on his forehead and back were cancerous. There is no indication from the service records that any of the lesions were diagnosed as melanoma or another skin disorder, and the Veteran's skin was noted as normal at the April 1979 service separation examination. According to an August 2006 private treatment record, the Veteran was not diagnosed with melanoma until between 2000 and 2002, over 20 years after service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). At the January 2012 Travel Board hearing, the Veteran testified that his treatment for melanoma did not begin until 2000 because of the fact that he did not like going to see the doctor, and that he only went in 2000 because he was told he had to see someone about the condition. He further testified that the lesions/tumors identified in service were continuous since his return from the Republic of Vietnam. The Board does not find such testimony credible, at least as to the issue on appeal. A May 1988 private medical record reports that the Veteran underwent a left partial superficial parotidectomy to determine whether a tumor in the Veteran's face was cancerous. The Board finds that, had the Veteran been exhibiting melanoma symptoms when the facial tumor had been identified, the melanoma would not have remained undiagnosed and/or untreated until 2000. See Buchanan, 451 F.3d at 1337 (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). Further, the Veteran received VA skin and scar examinations in February 2013. After reviewing the record and completing the examination, the VA examiner opined that the Veteran's precancerous facial scars were as likely as not related to the lesions found in 1975, and the Veteran was subsequently service connected for that disability. The examiner also opined that, due to the extensive period of time between when the lesions were identified in service and the subsequent diagnoses of melanoma on or about 2000 to 2002, it was less likely as not that the melanoma scarring was related to service. The Board notes that the examiner's explicit opinion concerning the melanoma scarring was, "melanomas were not diagnosed till late in 2002 and less likely to be sec[ondary] to the lesion on the forehead." Under relevant circumstances service connection may be granted for disability that is proximately due to or the result of a service-connected disability, and may also be granted for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Nothing in the record indicates, and the Veteran has not advanced, that the diagnosed and treated melanomas were secondary to the precancerous facial scars/tumors. A secondary service connection opinion was not requested in the Board's November 2012 remand. Based upon its own reading of the opinion, the Board finds that the examiner was, rather inartfully, attempting to convey that it was less likely than not that any of the lesions identified in service, i.e. the lesions of the face and back, were related to the melanoma diagnosed between 2000 and 2002. Such an interpretation of the examiner's opinion is supported by the evidence of record. In making its determination, the Board has considered post-service medical records relating to the Veteran's melanoma scarring. While many of these records identify complaints and treatment related to the melanoma scarring, other than the records previously discussed, they offer no medical opinion as to the etiology of the Veteran's melanoma scarring. The Board has also considered the Veteran's statements asserting a nexus between his melanoma scarring and active service due to his exposure to Agent Orange. The Veteran is competent to assert that he had bodily lesions and scarring in and after service, as such lesions and scarring can be detected with the five senses. Jandreau, 492 F.3d 1372. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 439-440 (2011), the diagnosis, etiology and onset of melanoma diagnosed 20 years after service separation is a complex medical question involving internal and unseen system processes. Some medical issues require specialized training for a determination as to diagnosis and causation; therefore, such issues are not susceptible of lay opinions on etiology. The Veteran is not a medical professional, and he has not offered any form of medical qualification or education. He is not competent to state that his melanoma, and the resulting melanoma scarring, was incurred in service. See Rucker, 10 Vet. App. at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer); Jandreau at fn. 4 (observing that lay evidence is generally not competent to diagnose forms of cancer). The Board finds that the weight of the competent evidence demonstrates no relationship between the Veteran's melanoma scarring and active service. The probative nexus opinion, other relevant medical documentation on file, and the lay evidence weigh against the claim. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for melanoma scarring, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for melanoma scarring, including as due to herbicide exposure, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs