Citation Nr: 1431069 Decision Date: 07/10/14 Archive Date: 07/15/14 DOCKET NO. 06-18 627 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to Agent Orange (herbicide) exposure. 2. Entitlement to service connection for residuals of carcinoma of the left cheek (formally entitlement to service connection for a carcinoma of the left cheek, to include as due to herbicide exposure). REPRESENTATION Appellant represented by: Deanne L. Bonner, Attorney 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 January 1974 to February 1983. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the RO in Denver, Colorado, which, in pertinent part, reopened and denied service connection for a left-cheek carcinoma, and denied service connection for diabetes mellitus. This case was previously before the Board in February 2012. As to the issues on appeal, the Board denied service connection for both diabetes mellitus and a left-cheek carcinoma (which had been reopened by the Board in a previous decision). The Veteran appealed the February 2012 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2013 Order, the Court granted a Joint Motion for Partial Remand (JMR) and remanded the issues on appeal for action consistent with the terms of the JMR. Specifically, in the JMR the parties agreed that the Board failed to obtain a necessary VA examination and/or opinion, and failed to associate certain outstanding evidence into the record. In the instant decision, the Board grants service connection for both diabetes mellitus and residuals of carcinoma of the left cheek; therefore, there is no need to discuss the Board's remand responsibilities under Forcier v. Nicholson, 19 Vet. App. 414 (2006). In April 2009, the Veteran provided testimony at a Travel Board hearing before a different Veterans Law Judge at the Denver RO. As that Veterans Law Judge is no longer with the Board, in October 2011, the Veteran testified from the Denver RO at a Board videoconference hearing before the undersigned Veterans Law Judge who was seated in Washington, DC. The hearing transcripts have been associated with the record. On April 7, 2014, the Veteran's representative filed a motion for a 60 day continuance to submit additional evidence in support of the Veteran's claim. The motion was granted on April 11, 2014. The Board received additional evidence and argument from the Veteran's representative in June 2014. A waiver of initial RO consideration was provided with the documentation. 38 C.F.R. § 20.1304 (2013). The Board has reviewed the physical claims files and both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to insure a total review of the evidence. The Veteran's representative submitted a June 2014 brief listing the issues on appeal as entitlement to service connection for diabetes mellitus, for carcinoma of the left cheek, and for residuals of carcinoma, to include a facial scar. The issue of service connection for residuals of carcinoma is not a new claim which must be referred for initial adjudication. The Board notes that in his August 2004 claim, the Veteran stated that he had skin cancer. As such, prior to this decision, the issue on appeal was styled as entitlement to service connection for a carcinoma of the left cheek, to include as due to herbicide exposure; however, the evidence of record reflects that the proper issue on appeal, entitlement to residuals of carcinoma of the left cheek, is more encompassing. A claim and adjudication for service connection for carcinoma implicitly includes a claim for all known residuals of that carcinoma. As noted in the representative's June 2014 brief, the Veteran was diagnosed with basal cell carcinoma on his left cheek, which was removed by surgery in 1997. The private medical records concerning this procedure reflect that the Veteran was tumor free after the third layer of excision. The VA examiner at a September 2003 VA examination conveyed that the procedure left a serpentine scar on the Veteran's left cheek. VA and private medical documents do not reflect that the carcinoma itself has ever recurred. At the April 2009 Travel Board hearing, the Veteran testified that the doctor cut his cheek three times until "they didn't have any more cancer." Further, at the October 2011 Board videoconference hearing, the Veteran testified that after the excision his cheek was monitored by VA doctors to ensure that the carcinoma did not recur. When asked, the Veteran denied any recurrences of the left-cheek carcinoma since 1997. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The carcinoma issue on appeal was raised in August 2004, and the Veteran's first request for service connection for carcinoma of the left cheek was made in May 2003. At no point during the pendency of this appeal was carcinoma present in the left cheek. As the Veteran was not diagnosed with left-cheek carcinoma during the pendency of this appeal, but was instead diagnosed with residuals of said carcinoma, the issue on appeal has been properly restyled to entitlement to service connection for residuals of carcinoma of the left cheek (formerly service connection for a carcinoma of the left cheek, to include as due to herbicide exposure). FINDINGS OF FACT 1. The Veteran is currently diagnosed with diabetes mellitus. 2. The Veteran was exposed to environmental toxins during the regular course of his in-service job as a carpenter while stationed at Andersen Air Force Base (AFB) in Guam. 3. The currently diagnosed diabetes mellitus is related to service. 4. The Veteran is currently diagnosed with residuals of carcinoma of the left cheek, to include a facial scar. 5. While in service, the Veteran was exposed to high levels of ultraviolet solar radiation during the regular course of his in-service job as a carpenter. 6. The currently diagnosed residuals of carcinoma of the left cheek are related to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2013). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for residuals of carcinoma of the left cheek have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). In this decision, the Board grants service connection for diabetes mellitus and residuals of carcinoma of the left cheek. As such action represents a complete allowance of the Veteran's appeal, no further discussion of VA's duties to notify and to assist is necessary. Service Connection Law and Regulation 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 this case, diabetes mellitus is a "chronic disease" listed under 38 C.F.R. § 3.309(a), while residuals of carcinoma of the left cheek is not; therefore, 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 residuals of carcinoma of the left cheek. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As the instant decision grants service connection for diabetes mellitus on a direct basis, the Board need not consider whether the Veteran is entitled to service connection for diabetes mellitus on a presumptive basis. Service connection may also 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 (2013). 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. Diabetes mellitus is subject to this presumption, while residuals of carcinoma of the left cheek is not. Notwithstanding the foregoing presumption provisions for herbicide exposure, 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). The Board notes that the subject of whether the Veteran was exposed to herbicides in service is disputed in the record and was one of the issues to be clarified on remand according to the JMR; however, as service connection for diabetes is granted on a direct basis in the instant decision, the Board need not evaluate whether service connection is warranted under the herbicide exposure presumption. 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). Entitlement to Service Connection for Diabetes Mellitus The Veteran has generally asserted that he is entitled to service connection for diabetes mellitus due to his exposure to herbicides while in service. He also contends that he was exposed to environmental toxins while in service in Guam while performing carpentry duties. Initially, the Board finds that the Veteran is currently diagnosed with diabetes mellitus. VA medical records reflect that the Veteran receives treatment for this disability. Next, the Board finds that the Veteran was exposed to environmental toxins while stationed at Andersen AFB in Guam. The DD Form 214 reflects that during service the Veteran was a Carpentry Technician/Specialist. At the October 2011 Board videoconference hearing, the Veteran credibly testified that his carpentry duties took him all over Andersen AFB, as he would fix doors, windows, roofs, bunkers, and air-field buildings. VA received a private diabetes medical opinion dated March 2014. Included with the examiner's opinion was her research, which included an Andersen AFB Public Health Assessment from the U.S. Department of Health and Human Services. The report conveys that numerous fuel, pesticide, and chemical spills had occurred on base. In her report, the private examiner noted that the Veteran's carpentry duties took him all over Andersen AFB, including areas found to be heavily contaminated. Most significant for purposes of this decision, the Veteran reported to the examiner being involved in the dumping of construction debris and materials at dumping sites which are now recognized as part of the U.S. Environmental Protection Agency's (EPA) Comprehensive Environmental Response, Compensation, and Liability Act, commonly known as the "Superfund." As such, the Board finds that the Veteran was exposed to environmental toxins while stationed at Andersen AFB. After a review of all the evidence of record, lay and medical, the Board finds the evidence is at least in equipoise as to whether the Veteran's diabetes mellitus is related to active service. The evidence weighing against a finding that the diabetes is related is the absence of diagnosis and/or treatment of diabetes in the Veteran's service treatment records. The Veteran specifically denied a personal or family history of diabetes at the January 1983 service separation examination. Further, VA medical records reflect that the Veteran was not diagnosed with diabetes until on or about April 2004, over 20 years after separation from service. The evidence supporting a finding that the Veteran's diabetes mellitus is related to active service includes his testimony at the October 2011 Board videoconference hearing that he began experiencing diabetic symptoms of weight gain, dry mouth, and excessive urination while in service, and that such symptoms continued up until he was diagnosed with diabetes mellitus. Most significant for purposes of this decision is the March 2014 private diabetes medical opinion in which the private examiner opined that the Veteran's currently diagnosed diabetes mellitus is at least as likely as not related to his active service. Specifically, the private examiner explained that while stationed at Andersen AFB the Veteran's carpentry assignments required him to perform his duties throughout the base, including at known Superfund sites, during a time at which the evidence shows environmental contamination at Andersen AFB was both ongoing and at high levels. This was also during a period prior to any attempt to clean the contaminated areas of the base. As diabetes mellitus has been shown to be associated with the types of environmental toxins to which the Veteran was exposed during service, the private examiner opined that it was at least as likely as not that the currently diagnosed diabetes was a direct result of toxin exposure while on active duty. The Veteran is currently diagnosed with diabetes mellitus, and he was regularly exposed to known environmental toxins while performing in-service carpentry duties at Andersen AFB. The March 2014 private examination report, along with the included supporting research, conveyed that the environmental toxins discovered by the EPA at Andersen AFB are of the type known to cause diabetes, and that it is as likely as not that the Veteran's currently diagnosed diabetes is related to his in-service environmental toxin exposure. Resolving reasonable doubt in the Veteran's favor, the Board finds that diabetes mellitus was incurred in active service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Entitlement to Service Connection for Residuals of Carcinoma of the Left Cheek Throughout the course of this appeal, the Veteran has asserted that his left-cheek carcinoma and the resulting residuals were caused by sun exposure during his outdoor carpentry assignments while in service. In the alternative, the Veteran has advanced that the carcinoma was the result of herbicide exposure. As previously discussed, the medical evidence of record, including private surgical reports and a September 2003 VA examination report, conveys that the Veteran had a carcinoma excised from his left cheek in 1997. While the carcinoma has not recurred, residuals of the procedure remain, including a serpentine facial scar. As such, the Veteran has a current diagnosis of residuals of carcinoma of the left cheek. The Board next finds that the Veteran was exposed to high levels of ultraviolet solar radiation during the regular course of his in-service job as a carpenter. As explained by the private examiner in her March 2014 report, while in service the Veteran was stationed at a number of sites known for high ultraviolet solar radiation exposure, including Andersen AFB in Guam and Howard AFB in the Panama Canal Zone. The report conveys that the Veteran advanced working at outdoor construction sites in service, and that these sites provided no protection from direct sun exposure. The private examiner opined that the Veteran's skin, especially the unprotected surfaces of his face, would have had prolonged and recurrent direct exposure to the ultraviolet rays of the sun. After a review of all the evidence of record, lay and medical, the Board finds the evidence is at least in equipoise as to whether the Veteran's left-cheek carcinoma residuals are related to active service. Review of the Veteran's service treatment records reveal that they were absent for complaint, diagnosis, and or treatment of a left-cheek carcinoma in service. The January 1983 service separation examination report notes that the Veteran's skin was normal upon service separation. A June 1997 private treatment record reflects that the Veteran had a left-cheek lesion which appeared one year earlier. As such, the left-cheek carcinoma was not diagnosed until over a decade had passed since service separation. The VA examiner at the September 2003 VA examination did not offer an opinion as to whether the Veteran's carcinoma residuals were related to service. At the April 2009 Travel Board hearing, the Veteran testified that he first noticed a malignant growth on his left cheek on or about 1989, which he did not have checked out for about another 10 years; however, he also testified that on or about 1979-1980 he noticed the development of a little red or black spot on his left cheek which began growing until it was the size of a thumbnail and turned clear. It was at that point that the Veteran saw a doctor and was referred to a skin specialist. At the October 2011 Board videoconference hearing, the Veteran testified that he was diagnosed by a private doctor with carcinoma in 1987, and that he was told the cause of the carcinoma was probably sun exposure. While the Board believes the Veteran may have confused the date on which he was diagnosed with a carcinoma, the Board does find credible the Veteran's testimony that he was told that the cause of the carcinoma was likely sun exposure. Finally, the March 2014 private examination report conveys that the private examiner opined that the Veteran's facial skin carcinoma, and thus the resulting treatment residuals, was at least as likely as not related to the Veteran's active service. As reason therefore, the private examiner noted that the medical literature reflects that ultraviolet ray exposure is a risk factor in the development of basal cell carcinoma. Further, the report reflects that the Veteran stated that his outdoor carpentry work resulted in profuse sweating. The examiner noted that the medical literature has found that sweat contributes to ultraviolet ray skin damage, as it increases the individual photosensitivity of the skin and facilitates an increased risk of sunburns. The private examiner opined that the prolonged tropical sun exposure in Guam and Panama, in conjunction with the constant sweating, would have predisposed the Veteran to an increased risk for the development of skin cancer, in particular, basal cell carcinoma. The Veteran is currently diagnosed with residuals of carcinoma of the left cheek, which includes facial scaring, and he was regularly exposed to harmful ultraviolet rays from constant and intense sun exposure in Guam and Panama during the regular course of his in-service carpentry duties. The private examiner, in the March 2014 opinion, opined that it was at least as likely as not that the constant exposure to ultraviolet solar radiation caused the Veteran's left-cheek carcinoma, which resulted in the post-treatment facial scaring. Resolving reasonable doubt in the Veteran's favor, the Board finds that any and all residuals of carcinoma of the left cheek, including facial scaring, were incurred in active service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for diabetes mellitus is granted. Service connection for residuals of carcinoma of the left cheek is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs