Citation Nr: 1633494 Decision Date: 08/24/16 Archive Date: 08/31/16 DOCKET NO. 11-33 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a skin disorder (claimed as basal cell carcinoma), to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Board remanded the case for further development in October 2014. The case has since been returned to the Board for appellate review. Thereafter, the Board requested an advisory medical opinion from the Veterans Health Administration (VHA) in March 2016. The Veteran and his representative were sent a copy of the opinion and given 60 days to submit further evidence or argument. See 38 C.F.R. §§ 20.90, 20.903 (2014). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA. FINDING OF FACT The Veteran has not been shown to have a skin disorder that manifested in service or that is related to his military service. CONCLUSION OF LAW A skin disorder was not incurred in active service and is not due to herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO provided the Veteran with a notification letter in October 2010, prior to the initial decision on the claim for service connection. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. In the letter, the RO notified the Veteran of the evidence necessary to substantiate the claim and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein. The Veteran was also afforded a VA examination in November 2014. In addition, as noted above, the Board obtained a VHA opinion in March 2016. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the March 2016 VHA opinion is adequate to decide the case because it is based on an accurate factual premise and a review of the claims file, including the Veteran's reported medical history and complaints. The opinion also addresses the central medical issues and is supported by rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). In addition, the Board notes that the case was remanded in October 2014 to obtain an additional VA medical opinion regarding the etiology of the Veteran's current skin disorder. As noted above, the Veteran was afforded a VA examination in November 2014, and a VA medical opinion was provided. The Board did not find the November 2014 VA examiner's opinion to be fully adequate, and therefore, requested a VHA opinion. Accordingly, the remand directives were ultimately accomplished, and as such, there has been substantial compliance with the prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis The Veteran has claimed that his skin disorder is the result of his sun exposure while serving in Vietnam and Thailand. He has also asserted that his skin disorder could have been caused by his exposure to herbicides while serving in Vietnam. See September 2010 statement in support of claim; March 2011 notice of disagreement. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131(West 2014). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The term "chronic disease," whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The disorder at issue in this case is not listed as a chronic disease in the regulation. In addition, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(a)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). Section 3.307(a)(6) also provides that a veteran who, during active military, naval, or air 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 during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of the Department of Veterans Affairs 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 Notice, 67 Fed. Reg. 42600 -42608 (2002). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for a disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for a skin disorder. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a skin disorder. In fact, a September 1969 separation examination found his skin to be normal, and he denied having a medical history of skin disease. Therefore, the Board finds that the Veteran's skin disorder did not manifest in service. The Veteran has not contended otherwise. Nevertheless, the Board does note that the Veteran has consistently stated that he was exposed to sunlight in service. Specifically, the Veteran stated that he worked in direct sunlight while working on the maintenance of trucks in Thailand in 1969. See May 2011 statement in support of claim. The Veteran's DD-214 does show that he was an auto mechanic in service and that he served in Thailand from January 1969 to October 1969. Thus, the Veteran's lay testimony that he had sun exposure in service is credible and is consistent with the circumstance and conditions of the Veteran's service. In addition, the Veteran has asserted that he was exposed to herbicides in service. His military personnel record does show that he served in Vietnam from May 1967 to May 1968. Therefore, he is presumed to have been exposed to herbicides during his military service. 38 C.F.R. § 3.307(d)(6)(iii). In addition, the evidence of record shows that the Veteran has been diagnosed with multiple basal cell carcinomas (BCCs) and actinic keratosis (AKs) during the appeal period. Thus, the remaining question is whether there is a relationship between the Veteran's sun and herbicide exposure and his skin disorder. The Veteran was afforded a VA examination in November 2014 at which time he was diagnosed with BCC and AK. The examiner opined that the Veteran's skin disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so doing, she noted that there was no documentation in the Veteran's service treatment records showing that he had any treatment for a skin condition while in the military. The examiner also noted that the Veteran was not diagnosed with BCC and AK until 40 years after service. The examiner stated that the Veteran's skin disorder was more likely due to a lifetime of sun exposure, as he would have had exposure both prior to and after service. Nevertheless, the Board noted that the November 2014 VA examiner did not address the assertion that the Veteran's current skin disorder may be related to herbicide exposure in service. Thus, the Board finds that the November 2014 VA examination has somewhat limited probative value. Thereafter, the Board requested a VHA opinion regarding the etiology of the Veteran's skin disorder. In May 2016, a VA dermatologist responded to the Board's request. After a thorough review of the Veteran's medical records, the examiner opined that the Veteran's skin disorder is not at least as likely as not related to his in-service sun exposure and herbicides. In so finding, the examiner stated that, at the time of the diagnosis in 2010, the Veteran was 65 years old and had spent three years in service. The examiner stated that more than 95% of the Veteran's life, where the critical sun exposure may have occurred, was not service-related. Thus, as stated above, the examiner opined that the Veteran's skin disorder is less likely than not due to sun exposure while in service. Additionally, the May 2016 VHA examiner opined that the Veteran's skin disorder is not at least likely as not related to the Veteran's exposure to Agent Orange. In so finding, the examiner cited a preliminary study that found a doubling in the incidence of non-melanoma skin cancer in Agent Orange exposed patients compared to control patients. The examiner indicated that the study does not state that the Agent Orange contaminant is causative of non-melanotic skin cancer; rather, it was associated with non-melanotic skin cancer. The examiner then stated that the Agent Orange contaminant can act as a tumor promoter, but is not a mutagen per se. Additionally, the examiner opined that the driving force behind BCCs are ultraviolet light induced DNA mutations. Ultimately, as stated above, the examiner opined that it is less likely than not that the BCC removed from the Veteran's right ear was due to Agent Orange exposure either alone or in combination with sun exposure. The Board finds that the May 2016 VHA opinion is adequate to decide the issue and to be of substantial probative value. Here, the most probative evidence of record shows that the Veteran's skin disorder is not related to his military service, to include his exposure to herbicides. Significantly, the Board finds the May 2016 VHA opinion to be of substantial probative value, as the examiner based the opinion on the medical and lay evidence of record, as well as on medical principles and literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning). The Board does note that the Veteran himself has stated that his sun exposure and Agent Orange exposure during service is a contributing factor to his skin disorder. See March 2011 notice of disagreement; September 2010 statement in support of claim. The Veteran is competent in this case to provide testimony regarding his sun exposure in service, and as stated above, his herbicide exposure is presumed. However, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his skin disorder. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of his skin disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The question of etiology in this case goes beyond a simple and immediately observable cause-and-effect relationship. Moreover, even assuming the Veteran's lay assertions regarding etiology were competent, the Board nevertheless finds the May 2016 VHA opinion to be more probative, as it based on a review of the record and the dermatologist's medical expertise. He provided a thorough rationale with a discussion of medical literature and other factors. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for his skin disorder. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a skin condition (claimed as basal cell cancer) is not warranted. ORDER Service connection for a skin disorder is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs