Citation Nr: 1541502 Decision Date: 09/25/15 Archive Date: 10/02/15 DOCKET NO. 14-16 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for facial cancer. 2. Entitlement to service connection for bladder cancer. 3. Entitlement to service connection for kidney cancer. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1962 to November 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee that, in pertinent part, denied service connection for facial cancer, kidney cancer, and bladder cancer. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of service connection for kidney cancer is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Skin cancer of the face, to include basal cell carcinoma, was not manifested during service or within one year of service (to include within one year of the Veteran's last exposure to an herbicide agent in service); the preponderance of the evidence is against a finding that the Veteran's current skin cancer of the face is related to an event, injury, or disease in service. 2. Bladder cancer was not manifested during service or within one year of service (to include within one year of the Veteran's last exposure to an herbicide agent in service); the preponderance of the evidence is against a finding that the Veteran's current bladder cancer is related to an event, injury, or disease in service. CONCLUSIONS OF LAW 1. Skin cancer of the face, to include basal cell carcinoma, was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6), 3.309 (2015). 2. Bladder cancer was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6), 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The notice requirements have been met. An October 2011 letter notified the Veteran of the information needed to substantiate and complete his claims of service connection for skin cancer of the face and bladder cancer, to include notice of the information that he was responsible for providing and of the evidence that VA would attempt to obtain. The letter also provided notice as to how VA assigns disability ratings and effective dates. The Veteran has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). Regarding the duty to assist, the Veteran's service treatment records (STRs) and post-service treatment records relevant to the claims of service connection for skin cancer of the face and bladder cancer have been secured. VA sought treatment records from a private physician who the Veteran said had treated his skin cancer in May 1999. In a November 2011 letter, the physician indicated the Veteran's records had been destroyed because they were more than 10 years old. And as will be explained below, the Board is remanding the issue of service connection for kidney cancer to provide the Veteran another opportunity to submit private treatment records he specifically indicated were only relevant to his treatment for kidney cancer. He has not identified any additional records that could be used to support his claims of service connection for skin cancer of the face or bladder cancer. In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that "[n]ot all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit Court concluded in Golz, "[t]here must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id. at 1323. Here, neither the Veteran nor the record provides a reason to believe any outstanding records may be relevant to the claims of service connection for skin cancer and bladder cancer. Accordingly, a remand of the skin cancer and bladder claims for the procurement of the treatment records pertaining to his kidney cancer would serve no useful or meaningful purpose and only instead result in unnecessarily imposing additional burdens on VA with no potential benefit flowing to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran was not afforded a VA examination for the claims on appeal. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to the Veteran's claims for service connection, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims (Court) has stated 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 the 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 v. Nicholson, 20 Vet. App. 79 (2006). The Board concludes examinations and opinions with respect to the Veteran's claims for service connection for skin cancer and bladder cancer are not needed because the only evidence indicating such disabilities are related to service is his own general, conclusory lay statements. He asserts such disabilities are related to herbicide exposure in Vietnam. However, there is no medical evidence of record regarding a nexus between the Veteran's skin cancer of the face and bladder cancer and service, including his presumed exposure to herbicides therein. He has also not alleged a continuity of symptomatology since service. As there is no indication of some causal connection by competent lay or medical evidence, an examination is not warranted. See McLendon, supra. For these reasons, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claims. Legal Criteria, Factual Background, and Analysis Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (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). Certain chronic disabilities, such as malignant tumors, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a), to include cancer. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Veterans who, during active 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 to an herbicide agent [to include Agent Orange], unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. With regard to disabilities a veteran attributes to exposure to Agent Orange, the law provides that service connection may be presumed for certain diseases enumerated by statute and regulations that become manifest within a particular period, if any such period is prescribed. In the case of a veteran who engaged in combat with the enemy in active service during a period of war, the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all evidence in the claims file, 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 of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. At the outset, the Board notes that the Veteran has not alleged that his skin cancer and bladder cancer are result of participation in combat itself, but rather the result of his exposure to Agent Orange, and the relaxed evidentiary standards of 38 U.S.C.A. § 1154(b) do not apply. Private treatment records show the Veteran has been diagnosed with skin cancer of the face and bladder cancer. A May 1999 biopsy report indicates basal cell carcinoma (BCC) was diagnosed after a skin specimen taken from below his left eye was analyzed. Papillary urothelial carcinoma, which was also described as bladder cancer, was diagnosed in June 2010. Current disabilities are therefore established. It is not in dispute that the Veteran served in Vietnam, and is entitled to a presumption that he was exposed to herbicides therein. The regulations, however, do not provide presumptive service connection for skin cancer, including BCC, or bladder cancer based on exposure to Agent Orange. 38 C.F.R. §§ 3.307, 3.309. The VA Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586-57589 (1996). Accordingly, presumptive service connection for skin cancer, to include BCC, or bladder cancer based on exposure to Agent Orange is not warranted. Notwithstanding, the Board will still consider whether the Veteran is entitled to service connection for skin cancer or bladder cancer based on a presumptive basis for chronic disease under 38 C.F.R. § 3.309(a), on a continuation of symptomatology under 38 C.F.R. § 3.303(b), or on a direct basis. The Veteran's skin and genitourinary system were clinically evaluated as normal on June 1961 R.O.T.C., April 1962 service entrance, July 1962, April 1963, June 1964, July 1968, August 1972, March 1978, July 1979, August 1981, June 1982, and September 1982 service separation, examinations. He indicated he had not had a tumor or cancer on June 1961, April 1962, July 1962, June 1964, June 1982, and September 1982 reports of medical history. A February 1973 note indicates he complained of pain on urination. A provisional diagnosis of urethritis was made, and a subsequent note indicates he no longer had pain. He was treated for an open lesion on the left side of his mouth in December 1971 and October 1973. It was diagnosed as a viral lesion in October 1973. He was treated for nasal polyps in July 1976, September 1976, and April 1980, but there was no indication of malignancy. An October 1970 note indicates he was treated for an infection on his left thigh. He complained of an itchy rash on his groin in December 1981. Tinea cruris was diagnosed on both occasions. Accordingly, his STRs are silent for any complaints, findings, treatment, or diagnosis relating to skin or bladder cancer. The Veteran underwent a VA medical examination in April 1982 for a hearing loss claim. His skin; head, face, and neck; and genitourinary system were found to be within normal limits. In his August 2011 claim for service connection, the Veteran indicated his skin cancer of the face began in 1999 and his bladder cancer began in 2010. In August 2011 authorization forms, he indicated he was treated for cancer of the face in May 1999 and for bladder cancer in June 2010. As noted, the private treatment records show the Veteran was diagnosed with BCC of the face in May 1999 and bladder cancer in June 2010. A December 2012 VA Agent Orange examination report indicates the Veteran served in Vietnam and had been diagnosed with BCC of the face and had a benign tumor of the bladder removed, but no etiology opinions were provided. In multiple statements, the Veteran has contended his skin cancer and bladder cancer were caused by his exposure to Agent Orange and other dioxins during his two tours in Vietnam. The Board finds that the evidence of record does not support a finding of service connection for skin cancer of the face, to include BCC, or bladder cancer. There is currently diagnosed BCC and bladder cancer, but the Veteran himself acknowledges that his skin cancer did not manifest until May 1999, more than 15 years after discharge, and that his bladder cancer did not manifest until June 2010, more than 20 years after discharge. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., being diagnosed with skin cancer and bladder cancer. See 38 CFR § 3.159(a)(2); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to assert that he was first diagnosed with skin cancer in May 1999 and with bladder cancer in June 2010, and the Board finds his assertions credible. Entitlement to service connection for skin cancer and bladder cancer based on a continuation of symptomatology under 38 C.F.R. § 3.303(b) and on a presumptive basis for chronic disease under 38 C.F.R. § 3.309(a) is, therefore, not warranted. Moreover, the Veteran has not submitted any medical or scientific evidence that shows that exposure to Agent Orange actually caused his skin cancer or bladder cancer. The December 2012 VA Agent Orange examination report indicates he had been diagnosed with BCC of the face and had a bladder tumor removed, but in no way related such disabilities to his military service and exposure to Agent Orange. No etiology opinions were provided. The Board has also considered the Veteran's statements attributing his skin cancer and bladder cancer to service, but the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Therefore, the Veteran is not competent to provide an opinion on the etiology of his skin cancer or bladder cancer. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). In the absence of any persuasive and probative evidence that the Veteran's current skin cancer or bladder cancer are etiologically related to active service, service connection is not warranted and the claims must be denied. The Board recognizes the Veteran's honorable and decorated service to his country, but it is bound by the laws and regulations governing VA benefits. As discussed above, without an in-service disease or injury, the Board is not obligated to provide the Veteran with an examination or obtain any further opinion on the matters. He has not submitted a competent medical statement relating his skin cancer or bladder cancer to his military service. To the extent that the Veteran may allege a causal relationship, the Board notes that such statements are beyond his competence. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against the claims based on direct and presumptive theories of service connection, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for skin cancer of the face, to include basal cell carcinoma, is denied. Entitlement to service connection for bladder cancer is denied. REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered regarding the claim of service connection for kidney cancer. In an August 2011 VA authorization form, he indicated he received treatment for kidney cancer from Dr. James Loveless in July 2003. The RO mailed a request for the Veteran's treatment records from Dr. Loveless to the address provided by the Veteran in October 2011, but it was returned as undeliverable. The Veteran was not advised that the development letter was undeliverable, and no records have been received directly from Dr. Loveless' office. Instead, an August 2003 evaluation report prepared by Dr. Loveless for a disability application was provided by the Veteran. The complete treatment records from Dr. Loveless have not been received by VA. As his records not already associated with the claims folder could contain pertinent information, a remand to obtain such outstanding records is necessary. The Board notes a brief internet search indicates Dr. Loveless' office might have moved to Lebanon Pike in Nashville, Tennessee. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and request that he identify all medical providers from whom he has sought treatment for kidney cancer, and complete and provide any authorizations necessary for VA to obtain all identified treatment records for each medical treatment provider identified (specifically from Dr. Loveless). The Veteran should be informed that the prior address he provided for Dr. Loveless appears to be outdated as correspondence mailed there was returned as undeliverable and that is current address might be on Lebanon Pike in Nashville, Tennessee. After securing the necessary authorization forms, attempt to obtain all identified pertinent medical records. If any records sought are unavailable, the reason for their unavailability must be noted for the record. 2. After undertaking any other development deemed appropriate, readjudicate the issue of service connection for kidney cancer. If the benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded an opportunity to respond. Then return the case to the Board for further review if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs