Citation Nr: 1640368 Decision Date: 10/12/16 Archive Date: 10/27/16 DOCKET NO. 12-30 616A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for skin cancer of the head, face, neck, arms, and chest; and, if so, whether service connection for basal cell and squamous cell carcinoma, to include as secondary to service-connected seborrheic keratosis, is warranted. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1972 to September 1994. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in August 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which determined that new and material evidence had not been received in order to reopen a claim of entitlement to service connection for skin cancer of the head, face, neck, arms, and chest. The Board notes that the Veteran's claim for service connection for "skin cancer" encompasses basal cell and squamous cell carcinoma, both of which have been diagnosed during the present appeal period. Thus, the Board has recharacterized the issue on appeal as reflected on the title page. See Brokowsky v. Shinseki, 23 Vet. App. 79, 84 (2009) (generally, the scope of a disability claim includes any disability that may reasonably be encompassed by a Veteran's description of the claim, reported symptoms, and the other information of record). The Board notes that the Veteran also has a remote history of melanoma, another form of skin cancer, which was identified and successfully treated in 1998, over ten years prior to the filing of the instant claim. In Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the U.S. Court of Appeals for Veterans Claims (Court) held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. However, the probative evidence of record does not demonstrate a current diagnosis of melanoma at any point during the pendency of the claim; nor is there probative evidence of a recent diagnosis of melanoma prior to the Veteran's claim. Id. As previously noted, the only episode of melanoma occurred over a decade prior to the filing of the instant claim. As a result, the Board finds that melanoma falls outside the scope of the disability claim presently on appeal. The Board notes that, following the most recent adjudication of the Veteran's claim in the September 2012 statement of the case, he submitted additional medical evidence in April 2013. Thereafter, in a September 2016 Appellate Brief Presentation, his representative waived Agency of Original Jurisdiction (AOJ) consideration of such evidence. 38 C.F.R. § 20.1304(c) (2015). Therefore, the Board may consider such newly received evidence. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDINGS OF FACT 1. In a final decision issued in July 2005, the RO denied the Veteran's claim of entitlement to service connection for service connection for skin cancer of the head, face, neck, arms, and chest. 2. Evidence added to the record since the final July 2005 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for service connection for skin cancer of the head, face, neck, arms, and chest. 3. Resolving all doubt in favor of the Veteran, his currently diagnosed recurrent basal cell and squamous cell carcinoma was incurred as a result of his military service. CONCLUSIONS OF LAW 1. The July 2005 rating decision that denied service connection for skin cancer of the head, face, neck, arms, and chest is final. 38 U.S.C.A. § 7105(c) (West 2002) [(West 2014)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005) [(2015)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for skin cancer of the head, face, neck, arms, and chest. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The criteria for service connection for recurrent basal cell and squamous cell carcinoma are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to reopen the Veteran's claim for service connection for skin cancer of the head, face, neck, arms, and chest, and grant service connection for recurrent basal cell and squamous cell carcinoma herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. I. Application to Reopen a Previously Denied Claim Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). From the date of notification of an AOJ decision, the claimant has one year to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). In this regard, if the claimant files a timely notice of disagreement with the decision and the AOJ issues a Statement of the Case, a Substantive Appeal must be filed within 60 days from the date that the AOJ mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). If new and material evidence is received during an applicable appellate period following an AOJ decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). VA is required to determine whether subsequently submitted materials constitute new and material evidence relating to an earlier claim, regardless of how VA characterizes that later submission of evidence. Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed.Cir. 2014). If VA does not make the necessary determination, the underlying claim remains pending. Id. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156(c). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the instant case, the Veteran filed his original claim for service connection for skin cancer of the head, face, neck, arms, and chest in January 2005. In a June 2005 rating decision, the AOJ considered the Veteran's service treatment records, post-service medical records, and VA examinations. Upon a review of such evidence, the AOJ noted that the Veteran's service treatment records were negative for treatment or a diagnosis of skin cancer. Rather, his separation examination, as well as a contemporaneous examination, clearly showed a diagnosis of seborrheic keratosis, a condition for service connection had previously been established. Post-service medical records showed a history of skin cancer and actinic keratosis since at least 2003; however, the AOJ noted that such was almost ten years after his separation from service. Therefore, the AOJ denied service connection for skin cancer of the head, face, neck, arms, and chest as such condition neither occurred in nor was caused by service. In July 2005, the Veteran was notified of the decision and his appellate rights. Thereafter, he entered a notice of disagreement later that same month and a statement of the case was issued in March 2006. However, the Veteran did not perfect an appeal in a timely manner. In this regard, no further communication regarding his claim of entitlement to service connection for skin cancer was received until March 2009. Furthermore, no additional evidence was received within the remainder of the appeal period and, while the Veteran submitted additional service treatment records in July 2010, such are negative for any findings, treatment, or diagnoses referable to skin cancer. Rather, such reflect treatment for non-cancerous skin lesions, to include seborrheic keratosis, a fact which was previously of record. Therefore, neither 38 C.F.R. § 3.156(b) or (c) apply, and the July 2005 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002) [(West 2014)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005) [(2015)]. Evidence received since the July 2005 rating decision includes a July 2010 VA examination, noting that the Veteran's service-connected seborrheic keratosis is better described as squamous cell carcinoma, status-post excision with residual scar. It also includes statements from two non-VA treatment providers, both of which relate the Veteran's recurrent basal cell and squamous cell carcinoma to exposure to sun during his service. This evidence is new because it was not previously before VA decisionmakers at the time of the July 2005 rating decision. Such is also material because the statements suggest that the Veteran had a distinct skin disability during service, which was initially diagnosed as seborrheic keratosis, and that it continued after he was discharged from service, and ultimately developed into squamous cell carcinoma. Furthermore, such statements indicate that the Veteran's currently diagnosed skin cancer is related to his in-service sun exposure. The claim was previously denied by the AOJ on the basis that the Veteran's skin cancer of the head, face, neck, arms, and chest was not incurred as a result of his service. Thus, the evidence added to the record since the final July 2005 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for service connection for skin cancer of the head, face, neck, arms, and chest. Accordingly, the claim is reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). II. Service Connection Claim As an initial matter, the Board notes that the AOJ has not considered the Veteran's reopened claim on the merits. However, as the Board herein grants such claim, there is no prejudice to the Veteran in the Board proceeding with a decision at this time. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records reflect treatment for multiple instances of both seborrheic keratosis and actinic keratosis during his service. These lesions were excised, and he was advised to apply sunscreen. His August 1994 separation examination includes the notation "several [seborrheic keratoses] on arms/face." Since his separation from service, the Veteran has been treated for melanoma, as well as recurrent basal cell and squamous cell carcinomas. He asserts that these recurrent episodes of basal cell and squamous cell carcinoma are the result of sun exposure during service or, in the alternative, are caused or aggravated by his service-connected seborrheic keratosis. The earliest post-service medical treatment records addressing the Veteran's skin cancer are VA clinical notes dating from 2002. However, such reflect a history of melanoma excision in 1998. The Veteran asserts that, while undergoing treatment for melanoma, a lesion on his arm, characterized on his discharge examination as a seborrheic keratosis, was excised and found to be squamous cell carcinoma. The Veteran is competent to report a contemporaneous diagnosis, i.e., that he was told in 1998 that the lesion on his arm was squamous cell carcinoma, as opposed to seborrheic keratosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The medical evidence of record since 2002 reflects that the Veteran has had recurrent episodes of basal cell carcinoma and squamous cell carcinoma since that time. During a February 2005 VA skin diseases examination, the Veteran reported that he served in various areas of the world where he had heavy exposure to the sun, including Georgia, Florida, Arizona, and Kuwait. The examiner noted that, at the time of the examination, the Veteran had seborrheic keratoses; however, the examiner went on to note that these lesions pre-dispose him to the development of basal cell and squamous cell carcinoma. Records from a non-VA treatment provider, Dr. L., reflect that the Veteran was treated for multiple actinic and seborrheic keratoses, as well as basal cell and squamous cell carcinoma, from 2007 to 2009. Dr. L.'s notes also reflect that the Veteran's skin had extensive damage from exposure to the sun. The Veteran underwent another VA examination in July 2010. Although the examiner did not provide an opinion as to the medical probability that the Veteran's basal cell and squamous cell carcinoma had its onset during his period of active service, he did note that the diagnosis of seborrheic keratosis should be changed to squamous cell carcinoma, status post excision with residual scar. In a September 2010 letter, the Veteran's private dermatologist, Dr. R., indicated that the Veteran's lesions are consistent with overexposure to sunlight. Dr. R. noted the Veteran's lengthy period of active duty, and concluded that the Veteran's service "undoubtedly contributed to" the development of skin cancer, although it is impossible to determine to what degree." Finally, in an April 2013, another non-VA treatment provider, M.G., a physician's assistant, provided a statement noting that "cumulative sun exposure is a main risk for skin cancers, which often manifest as a patient ages." M.G. went on to note that the Veteran had 23 years of "heavy sun exposure" while serving in the military, which, in her opinion, "demonstrates a military affiliation to skin cancer." Turning to the merits of the claim, the Board notes that a current disability of recurrent basal cell and squamous cell carcinoma is established by the evidence of record. As to the second element of service connection, that of in-service incurrence, the Board notes that the Veteran was not diagnosed with basal cell or squamous cell carcinoma in service; however, the Veteran asserts that the sun damage he sustained during his lengthy period of service was significant enough to cause his skin cancer. The Veteran is competent to report exposure to sunlight during service; however, he is not competent to state that the amount of sun exposure that he received caused his recurrent basal cell and squamous cell carcinoma. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Furthermore, he is service-connected for seborrheic keratosis. Thus, the salient question in this matter is whether the competent evidence supports a conclusion that the Veteran's in-service sun exposure during his period of active duty is the proximate cause of his current disability, or that such is caused or aggravated by his service-connected seborrheic keratosis. As noted by the Veteran's private dermatologist, Dr. R., in the September 2010 letter, it is impossible to quantify the exact amount of sun exposure the Veteran received during service. However, the totality of the evidence supports a finding that the Veteran was exposed to enough sunlight in service to damage his skin. In this regard, the Board notes that the Veteran served on active duty for almost 23 years. There is no indication of skin problems or exposure to excessive amounts of sunlight prior to his entry into service. During his service, the Veteran served in several places in which significant exposure to strong sunlight can be presumed, including Florida, Georgia, Arizona, and Kuwait. While in service, the Veteran was treated for multiple instances of seborrheic and actinic keratoses, and was advised to wear sunscreen. Multiple areas of seborrheic keratoses were observed on the Veteran's August 1994 separation examination. Although post-service treatment records prior to 2002 have not been included with the evidence of record, a history of treatment for melanoma as early as 1998 is noted in the Veteran's medical history. Significant photodamage, or damage caused by exposure to sunlight, was observed in April 2002 by a non-VA dermatologist, and in July 2004 by a VA treatment provider. Both of the Veteran's non-VA treatment providers noted that the Veteran's recurrent basal cell and squamous cell carcinomas are the result of a cumulative overexposure to sunlight. In light of the fact that the Veteran had no apparent skin disease or history of excessive sun exposure prior to service; the length of his active service, which included being stationed in several localities that receive a great deal of strong sunlight; and the fact that both during his service and after, the Veteran had skin lesions consistent with a cumulative overexposure to sunlight, the Board finds that a preponderance of the evidence supports a conclusion that the Veteran was exposed to potentially damaging levels of sunlight during service. The third element of service connection requires a showing of a nexus between a claimant's current disability and an in-service event or a service-connected disability. On review, the Board notes that all of the medical professionals who have examined the Veteran have attributed his recurrent basal cell and squamous cell carcinoma to overexposure to sunlight during service, or his previously diagnosed seborrheic keratosis. The February 2005 VA examiner noted that the seborrheic keratoses observed during service were precursors to skin cancer. The July 2010 VA examiner noted that the seborrheic keratoses observed during service should have been recharacterized as squamous cell carcinoma. Both non-VA treatment providers, Dr. R. and M.G., related the Veteran's recurrent basal cell and squamous cell carcinoma to sun exposure during service. There is no probative evidence of record suggesting an alternate etiology for the Veteran's skin cancer. Therefore, the Board finds that, in resolving all doubt in favor of the Veteran, his currently diagnosed recurrent basal cell and squamous cell carcinoma was incurred as a result of his military service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Consequently, service connection for such disorder is warranted. ORDER New and material evidence having been received, the claim of entitlement to service connection for service connection for skin cancer of the head, face, neck, arms, and chest is reopened. Service connection for basal cell and squamous cell carcinoma is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs