Citation Nr: 1513214 Decision Date: 03/27/15 Archive Date: 04/03/15 DOCKET NO. 12-31 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for skin cancer. 2. Entitlement to service connection for skin cancer. 3. Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1969 to September 1971, with service in Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. An unappealed May 2009 rating decision denied the Veteran service connection for skin cancer based essentially on findings that such disability was not shown to be related to his service; it was also not shown that the Veteran had skin cancer. 2. Evidence received since the May 2009 rating decision includes evidence of a diagnosis of squamous cell carcinoma; it relates to an unestablished fact necessary to substantiate the claim of service connection for skin cancer; and raises a reasonable possibility of substantiating such claim. 3. Skin cancer was not manifested in service or within one year after the Veteran's separation from service; no diagnosed skin cancer is shown to be related to his service. 4. There is no competent and credible evidence that anxiety, depression, or any acquired psychiatric disorder had its onset in service, or that any current acquired psychiatric disorder is related to the Veteran's military service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for skin cancer may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2014). 2. Skin cancer was not incurred in or caused by the Veteran's active duty service, nor may it be presumed to have been incurred in such service. 38 U.S.C.A. §§ 1110, 1112, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014). 3. A chronic acquired psychiatric disability, to include anxiety and depression, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits and applies to the instant claims. Inasmuch as this decision grants that part of the benefit sought by reopening the claim of service connection for skin cancer, there is no reason to belabor the impact of the VCAA in the matter, as any notice or duty to assist omission is harmless. With respect to the Veteran's claim of service connection for an acquired psychiatric disability and the underlying claim for service connection for skin cancer, the requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met. By correspondence dated in July, August, and September 2011, VA notified the Veteran of the information needed to substantiate and complete his claims, of the information that he was responsible for providing, of the evidence that VA would attempt to obtain, and how VA assigns disability ratings and effective dates. The Veteran's service treatment records (STRs) and postservice VA treatment records have been secured. Examinations for the purpose of obtaining nexus opinions are not needed. In McLendon v. Nicholson, 20 Vet. App 79. (2006), the Court addressed the four elements that must be considered in determining whether a VA medical examination must be provided as required by 38 U.S.C.A. § 5103A. Specifically, the Court held that the third element, an indication that the current disability or symptoms may be associated with service, establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the two. There is no competent evidence that indicates that skin cancer or a psychiatric disability may emanate from service. Consequently, the Veteran has not presented evidence indicating a nexus between the current conditions and service. Thus, there exists no reasonable possibility that a VA examination would result in findings favorable to the Veteran. Accordingly, the Board finds that etiology opinions are not "necessary." See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Veteran has not identified any pertinent evidence that remains outstanding. The Board finds that the record includes adequate competent evidence to allow the Board to decide the matter on the merits. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed unless new and material evidence is submitted. 38 C.F.R. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The Court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, the Court viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). A May 2009 rating decision denied the Veteran's original claim of service connection for skin cancer based essentially on findings that such disability was not shown and was not shown to be related to his service. He did not appeal the decision (or submit additional evidence in the year following), and it became final. 38 U.S.C.A. § 7105. Evidence of record at the time of the May 2009 rating decision included the Veteran's STRs and postservice VA treatment records in support of his claim. The treatment records then in the record did not show that the Veteran had a diagnosis of skin cancer. Evidence received since the May 2009 rating decision includes additional postservice VA treatment records that include a diagnosis of squamous cell carcinoma. As the claim was previously denied in part because the RO had found that there was no diagnosis of skin cancer, for evidence to be new and material, it must relate to such unestablished fact, i.e., it must tend to show that the Veteran has skin cancer. Reviewing the additional evidence received since the May 2009 rating decision, the Board finds that it is both new and material. There is now a medical diagnosis of skin cancer-squamous cell carcinoma. Accordingly, such treatment records constitute new and material evidence, and the claim of service connection for skin cancer may be reopened. The Board finds that it may adjudicate this claim on the merits because the RO adjudicated the claim on a direct basis in the October 2012 statement of the case. Further, the Veteran has presented argument on the issue of service connection. Thus, there is no prejudice to the Veteran in proceeding to adjudicate the issue on appeal. Hickson v. Shinseki, 23 Vet. App. 394 (2010); Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also 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. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; 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, 1166-67 (Fed. Cir. 2004). Lay evidence may be competent evidence to establish incurrence of a disability in service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Skin Cancer The Veteran contends that his skin disorder is due to exposure to herbicides in Vietnam. Certain diseases may be service connected on a presumptive basis as due to herbicide (Agent Orange) exposure if manifested in a veteran who served in the Republic of Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116. Those diseases are listed in 38 C.F.R. § 3.309(e). The Board acknowledges he had service in Vietnam, and therefore is presumed to have been exposed to Agent Orange. However, inasmuch as none of his diagnosed skin disorders is among the diseases listed in 38 C.F.R. § 3.309(e) (determined to be related to Agent Orange/herbicide exposure), the presumptive provisions of 38 U.S.C.A. § 1116 do not apply, and service connection on a presumptive basis is not warranted. Service connection for a skin disorder may nonetheless be granted if any diagnosed skin disorder is affirmatively shown to be related to service/disease or injury therein (to include as due to exposure to herbicides). Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In his January 2009 claim for service connection, the Veteran reported that his skin cancer began in 2001 (nearly 30 years postservice). His STRs are silent for any complaint, finding, treatment, or diagnosis relating to a skin disorder, other than a March 1971 complaint of blisters on his feet. On September 1971 service separation examination, his skin was normal on clinical evaluation. The earliest record of postservice treatment the Veteran received for a skin disorder is a VA treatment record dated in May 2004 (more than 30 years after service) when actinic keratosis was diagnosed. Subsequent VA treatment records show diagnoses of squamous cell carcinoma, lesions, and telangiectasis. None of the records relates a diagnosed skin disorder to the Veteran's service. A skin disorder was not manifested in service. There is no mention of a skin disorder in the Veteran's STRs, including on service separation examination. In his claim seeking service connection, he reported that his skin disorder became manifest in 2001. Therefore, service connection for a skin disorder on the basis that such disorder became manifest in service and has persisted since is not warranted. In the absence of evidence of onset in service and continuity since, whether an "unlisted" skin disorder is related to [approximately 30 years] remote service is a medical question beyond the scope of lay observation. Jandreau, 492 F.3d at 1377. Therefore, it requires competent medical evidence. The Veteran has not presented any medical opinion or medical literature that relates any of his diagnosed skin disorders to service. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran's skin cancer and his service. Therefore, the benefit of the doubt doctrine does not apply, and the appeal in the matter must be denied. Acquired Psychiatric Disorder In this instance, the Veteran sought and was denied entitlement to service connection for anxiety and depression disorders. The Board notes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Notably, the record reflects various psychiatric diagnoses, including anxiety, depression, and alcohol dependence, and a suggested diagnosis of posttraumatic stress disorder (PTSD). The Board will thus consider entitlement to anxiety, depressive disorder, not otherwise specified, and all other psychiatric diagnoses raised by the record. The Veteran's STRs are silent for any history, complaints, findings, treatment or diagnosis of a psychiatric disorder of any kind during active service. VA treatment records from April 2011 note that the Veteran received a positive depression screening and a suggested diagnosis of PTSD; a June 2011 PTSD checklist continued to suggest a diagnosis of PTSD but no actual diagnosis was given. VA treatment records from September 2012 show that he was involved in a PTSD education group. According to the evidence of record, a psychiatric disability was first documented in 2011, more than 40 years after service. Consequently, service connection for an acquired psychiatric disability on the basis it became manifest in service and has persisted since is not warranted. Although VA treatment records show the Veteran received diagnoses of, and was treated for, various mental health disorders, there is no competent (medical) evidence that directly addresses the matter of a nexus between his current acquired psychiatric disability and his service. While he is competent to describe symptoms and when they occurred, he is not necessarily competent to identify the specific underlying psychiatric disorder that is the source of those symptoms. See Jandreau, 492 F.3d 1372. The diagnosis and etiology of psychiatric disabilities are complex medical questions that require medical expertise on the significance of symptoms noted, and whether they form the constellation of symptoms needed to support a psychiatric diagnosis. Therefore, the Veteran's statements regarding the etiology of any of the acquired psychiatric disabilities have no probative value. Accordingly, the Board must conclude that his claim of entitlement to service connection for an acquired psychiatric disability, to include anxiety and depression, must be denied. As to the diagnosis of alcohol dependence, governing statutes (38 U.S.C.A. § 105(a)) prohibit payment of compensation on a direct basis where the "disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs." The preponderance of the evidence is against the claim for service connection for an acquired psychiatric disability, to include anxiety and depression, and the appeal with regard to this matter must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The appeal to reopen a claim of service connection for skin cancer is granted. Service connection for skin cancer is denied. Service connection for an acquired psychiatric disability is denied. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs