Citation Nr: 1715315	
Decision Date: 05/08/17    Archive Date: 05/22/17

DOCKET NO.  12-21 980	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement service connection for basal cell carcinoma (claimed as skin cancer).

2.  Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right upper extremity prior to April 16, 2016 and in excess of 30 percent thereafter.


ATTORNEY FOR THE BOARD

Russell Veldenz, Counsel








INTRODUCTION

The Veteran served on active service from March 1967 to August 1970, to include service in the Republic of Vietnam.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  In April 2015, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development.  

During the pendency of the appeal, in an April 2016 rating decision, the AOJ increased the rating for peripheral neuropathy of the right upper extremity from 10 percent to 30 percent, effective April 2016.  The Veteran continued his appeal for a higher rating.  AB v. Brown, 6 Vet. App. 35, 38 (1993). 

The issue of entitlement to higher evaluations for peripheral neuropathy of the right upper extremity is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

The Veteran's basal cell carcinoma lesions are related to his sun exposure during active service.  


CONCLUSION OF LAW

The criteria for service connection for basal cell carcinoma have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).




REASONS AND BASES FOR FINDING AND CONCLUSION

As an initial matter, the Board notes that the Veteran filed his claim as service connection for skin cancer.  At various times, the Veteran has reported he has been diagnosed with both basal cell carcinoma and melanoma, which are both types of skin cancer.  The medical records, however, indicate the Veteran has been diagnosed only with basal cell carcinoma.  Multiple medical diagnoses that differ from the claimed condition do not necessarily represent a separate claim, and what constitutes a claim cannot be limited by a lay Veteran's assertion of his condition in his application, but must be construed based on the reasonable expectations of the claimant and the evidence developed in processing the claim.  Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009).  Accordingly, the Board has stated the issue as noted on the first page of this decision.  

Service connection may be established 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.  Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran essentially contends that his active service caused his skin cancer.  He has raised herbicide agent exposure and creosote exposure during active service as playing a role in causing his basal cell carcinoma.  

Basal cell carcinoma on the right side of the nose was diagnosed in March 2006 and excised with skin grafting.  Since that time, the Veteran has developed additional basal cell carcinoma lesions on his face, chest, and arms.  Accordingly, the first criterion for establishing service connection has been met.  The question becomes whether these conditions are related to service. 

The service treatment records indicate in May 1968, the Veteran complained of sun blisters on his lips with follow-up treatment in June 1968.  He also had treatment in April 1968 for burns on his arms that apparently resulted from an unnamed substance in an aerosol spray.  His skin examination upon separation in August 1970 was normal. 

As noted, the Veteran has developed multiple basal cell carcinoma lesions which have been treated by surgical removal and he has been followed by his VA medical providers on a regular basis to monitor the development of any lesion.  None of the records, however, have attributed the cause of the Veteran's basal cell carcinoma to service.  

The Veteran was provided with a VA examination for his basal cell carcinoma in October 2011.  The Veteran by that time reported approximately 10-15 lesions had been removed.  He sees a VA dermatologist approximately every 6 months, or what the examiner called "watchful waiting."  The examiner concluded the Veteran's basal cell cancer was less likely than not caused by or a result of the Veteran's military service stating that basal cell carcinoma is not a presumptive condition for Agent Orange exposure.  However, the examiner provided no further rationale for why this condition was not related to the Veteran's military service including whether there is a possible relationship between herbicide agents such as Agent Orange and the particular development of basal cell carcinoma in this case, irrespective of the presumption.  See Combee v. Brown, 34 F. 3d 1039, 1042 (Fed. Cir. 1994) (claimant is not precluded from establishing service connection with proof of direct causation by Agent Orange exposure even if there is no applicable presumption).  The VA examiner also did not discuss whether service generally played a role in the Veteran's onset of basal cell carcinoma, i.e., whether some other aspect besides herbicide agent exposure caused it.  

In June 2015, the VA examiner cited literature from the Mayo Clinic that skin cancer is caused by ultraviolet light exposure and risk factors include age, heredity, and increased sun exposure.  There was no medical literature to support the Veteran's contentions that Agent Orange exposure or PTSD resulted in basal cell carcinoma.  The VA examiner stated the Veteran's basal cell carcinoma was more likely related to prolonged exposure to the sun over his entire lifetime.  

In light of the medical opinion by the June 2015 VA examiner, and after resolving all doubt in favor of the Veteran, the Board finds that there is sufficient evidence to establish service connection for the basal cell carcinoma.  The Veteran served in Vietnam, and in Guantanamo Bay, Cuba, resulting in sun exposure.  As noted, the Veteran sought treatment once for sun exposure that caused his lips to blister.  There is also no dispute that the Veteran has been diagnosed with and treated for basal cell carcinoma.  The Veteran has sought regular follow up care after the 2008 diagnosis of basal cell carcinoma to prevent or treat reoccurrence.  The June 2015 VA examiner, taking the Veteran's history and treatment records into consideration along with the clinical and pathology information, concluded that more likely than not, life time sun exposure, which necessarily includes sun exposure in service, caused the basal cell carcinoma.  

Upon closer examination of his opinion, and resolving all doubt in favor of the Veteran, the Board concludes the examiner supports the Veteran's claim of service connection and has provided a positive medical nexus opinion.  The standard is inception or relation to service not whether only service caused the disability.  The Board finds this opinion to be the probative as it was definitive that sun exposure, which must include sun exposure in service, provided a role in the development of basal cell carcinoma.  It is based upon a complete review of the Veteran's entire claims file, and supported by rationale.  Accordingly, the opinion is found to carry significant weight.  Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  There are no contrary opinions of record. 

Thus, based on the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's multiple basal cell carcinoma lesions are etiologically related to his military service and service connection is warranted.  38 C.F.R. § 3.102.  See also 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  


ORDER

Entitlement to service connection for basal cell carcinoma, claimed as skin cancer, is granted.


REMAND

As noted above, in an April 2016 rating decision the AOJ increased the rating for peripheral neuropathy of the right upper extremity from 10 percent to 30 percent, effective April 2016.  The Veteran continued his appeal for a higher rating both before and after the April 2016 date.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  The April 2016 rating decision indicates that "all evidence in the file" was considered.  A contemporaneous supplemental statement of the case indicates VA treatment records to April 2016 were reviewed.  

The file, however, only contains VA treatment records up to February 2012.  The Board has determined that the missing records should be associated with the file.  There is no other way to determine if the Veteran is entitled to a higher rating for the period from February 2009 to April 2016.  Ongoing VA medical records should also be obtained.  See 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).  

Accordingly, the case is REMANDED for the following action:

1.  Obtain all relevant VA treatment records for the Veteran dating from February 2012 to the present.  All attempts to obtain these records should be documented in the file.  Any negative replies must be in writing, and associated with the file.

2.  After the development requested is completed, readjudicate the claim for an increased rating for peripheral neuropathy of the right upper extremity.  If any benefit sought remains denied, furnish the Veteran a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter 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 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).




______________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs