Citation Nr: 1751469 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 08-04 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a skin disorder, to include squamous skin cell carcinoma. 2. Entitlement to service connection for a right foot disability other than calcaneal spurs. 3. Entitlement to service connection for a chronic left foot disability other than calcaneal spurs. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel INTRODUCTION The Veteran had active military service in the U.S. Air Force from February 1965 to January 1969. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The pertinent part of this rating decision being appealed had the net effect of reopening a claim for service connection for a chronic orthopedic disability of the left foot for de novo review and denying it on the merits. The rating decision also denied the Veteran's claim for service connection for a chronic orthopedic disability of the right foot and for squamous cell carcinoma. In May 2008, the Veteran appeared before an RO hearing officer to present oral testimony in support of his claims. In May 2008, the Veteran appeared before an RO hearing officer to present oral testimony in support of his claims. A transcript of this hearing is associated with the record. Up to that time, the issues of entitlement to service connection for a chronic orthopedic disability of the left and right foot also included a claim for VA compensation for calcaneal spurs of each foot. However, at the May 2008 hearing, the Veteran expressly withdrew his appeal with respect to the specific issue of service connection for calcaneal spurs of each foot, submitting to the RO hearing officer both an oral statement (now transcribed into the record) and a written and signed statement in this regard. Thus, the Board has narrowed the focus of its review to entitlement to service connection for a chronic orthopedic disability of the left and right foot other than calcaneal spurs. The Veteran was also afforded a hearing before the Board in February 2011. As the Veterans Law Judge (VLJ) who conducted the February 2011 hearing is no longer at the Board, the Veteran was afforded another hearing in July 2015. In March 2017, the Veteran was advised that the VLJ who conducted the July 2015 hearing was also no longer at the Board. He was afforded another opportunity for a Board hearing; however, in April 2017, the Veteran responded that he did not want another hearing. Transcripts of the February 2011 and July 2015 Board hearings are associated with the claims file. These claims were remanded by the Board in June 2011 and June 2014 for further development. The issues of entitlement to service connection for a right foot and left foot disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran does not have a current diagnosis of squamous skin cell cancer. CONCLUSION OF LAW The criteria for service connection for squamous cell carcinoma have not been met. 38 U.S.C.A. § 1110, 1112, 1113, 1137, 1154, 5103A, 5107 (West 2014); 38 C.F.R. § 3.102 , 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, required notice was provided and the Veteran has not alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, VA's duty to notify has been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA treatment records, and private treatment records were obtained, to the extent available. The Veteran was afforded a VA examination in August 2011 for his skin cancer claim. In a statement submitted in July 2012, the Veteran argued that the August 2011 VA examiner was incompetent and not an appropriate specialist because she was a physician's assistant and not a physician. However, the Board notes that generally a VA examiner is presumed competent, and the mere fact that the examiner was a physician's assistant does not, on its face, render the examiner or her opinion incompetent. See Cox v. Nicholson, 20 Vet. App. 563 (2007). Also, as explained in more detail below, the VA examiner reviewed the Veteran's medical history and provided a sufficient rationale for her conclusion. Therefore, the August 2011 VA examination is adequate. Finally, neither the Veteran nor his representative has raised any other issues with the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to the duty to assist argument). For these reasons, the Board concludes that VA has fulfilled its 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. II. Legal Criteria, Factual Background, and Analysis As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's 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) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issue on appeal. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2017). Service connection may 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(d) (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include cancer, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. § 1112, 1113, 1137; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309(a) (2017). For cancer, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3)(2017). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. § 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b) (2017). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2016). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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) (West 2014); 38 C.F.R. § 3.102 (2017). 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 Veteran is seeking service connection for squamous cell carcinoma. He contends that his squamous cell carcinoma is the result of having been exposed to long hours sunlight while working on the flight line during his tour of duty in the Air Force. He notes that both prior to and after service he worked indoors. The Veteran has indicated that he was sunburned while he was stationed in Puerto Rico. See, e.g., October 2010 Statement of Accredited Representative in Appealed Case. Service treatment records are silent for any instances of sunburn exposure or signs or symptoms of squamous cell carcinoma. In his February 1965 Report of Medical Examination (enlistment), the Veteran's skin was clinically evaluated as normal. Also, in his January 1969 Report of Medical Examination (separation), the Veteran's skin was clinically evaluated as normal. In regards to the Veteran's statements about his sun exposure, the Board concedes the Veteran's statements to be credible. The Veteran's DD-214 confirms he was an Air Force policeman, and his service treatment records also show that he was stationed in Puerto Rico. The Veteran's statements concerning being exposed to the sun while in the Air Force are thus consistent with the circumstances of his service. Postservice treatment records show that it was not until around November 2002 that the Veteran was diagnosed with squamous cell carcinoma. The Veteran subsequently had surgery to have it removed. In a private dermatology report received in March 2011, the physician found that there was no evidence of recurrence of a prior skin cancer. However, upon examination, the physician found a keratotic erythematous papule on the Veteran's right upper arm that was most consistent with actinic keratosis. In August 2011, the Veteran was afforded a VA examination. The August 2011 VA examiner noted that the Veteran's squamous skin cell carcinoma was resolved with surgical excision in 2002. The VA examiner concluded that there was no evidence of any recurrence of squamous cell carcinoma. Furthermore, in January 2015, the Veteran was diagnosed with actinic keratosis, seborrheic keratosis, solar purpura, and tinea pedis. This evidence shows that service connection on a presumptive basis is not warranted because the Veteran's skin cancer did not manifest to a degree of 10 percent or more within one year of his separation from service. 38 C.F.R. § 3.307(a) (2017). The Veteran was not diagnosed with skin cancer until 2002, which is over a decade after the Veteran separated from service. Also, it is not shown that the Veteran suffered from skin cancer continuously from service, such that service connection would be warranted under 38 C.F.R. § 3.303(b), 3.309. See also Walker, 708 F.3d 1331. In particular, the Veteran's service treatment records are silent for any signs or symptoms of skin cancer and again, skin cancer was not diagnosed until 2002. Therefore, service connection based on continuity of symptomatology is not warranted either. Service connection on a direct basis is also not warranted. The Veteran does not have a current diagnosis of squamous cell carcinoma. The Veteran had squamous cell carcinoma removed in November 2002, prior to his current claim (which was filed in November 2005). Since then, the medical records have not indicated that the Veteran has had a current diagnosis of squamous cell carcinoma. The VA examiner in August 2011 concluded that there was no evidence of any recurrence of squamous cell carcinoma. Also, in a private dermatology report received in March 2011, the physician found that there was no evidence or recurrence of a prior skin cancer. Although, private treatment records reveal that the Veteran has been diagnosed with actinic keratosis, seborrheic keratosis, and solar purpura, there is no evidence indicating a recurrence of squamous cell carcinoma. Since there is no indication that the Veteran has had a current diagnosis of squamous cell carcinoma at any time during the appeal period, service connection is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Even if the Veteran did have a current diagnosis of squamous carcinoma, service connection would still not be warranted. The medical nexus evidence weighs greatly against the Veteran's claim. In August 2011, the Veteran was afforded a VA examination. The VA examiner opined that the Veteran's squamous cell carcinoma was less likely than not caused by the two years of unprotected sun exposure during military service. The VA examiner explained that cumulative unprotected sun exposure is a risk factor for the development of squamous cell carcinoma. The Veteran's unprotected sun exposure during military service occurred over a period of approximately two years per his report. Per a review of medical literature, squamous cell carcinoma was associated with cumulative unprotected sun exposure over multiple years in a lifetime, as well as age, genetics, and heritage. The August 2011 VA examination is probative in value and afforded significant weight against the claim. The VA examiner reviewed the claims file, examined the Veteran, and took into account the Veteran's medical history. Also, the VA examiner provided a sufficient rationale for her conclusion. Therefore, this evidence weights against the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Significantly, there are no other medical nexus opinions favoring the Veteran's claim. The Board notes that the Veteran also submitted an internet article about how sunlight exposure increases the risk of skin cancer and actinic keratosis. See July 2015 Medical Treatment Record. The probative value of this article is diminished by the fact that its findings and opinions were not based on the Veteran's specific history and findings. Of more probative value is the medical opinion of the August 2011 VA examiner, who determined that the Veteran's squamous cell carcinoma was resolved in 2002 and that it was not related to his military service. Regarding the statements from the Veteran relating squamous cell carcinoma to his service, while he may be competent to testify as to the symptoms he experiences, it is beyond his competence as a layperson to opine that his skin cancer is related to his service. The Veteran lacks the training to opine whether skin cancer may (in the absence of credible evidence of continuity, as here) be related to remote incidences in service; this is a question that is medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). In light of the foregoing, the preponderance of the evidence is against the claim. Accordingly, the appeal seeking service connection for a squamous cell carcinoma, must be denied. ORDER Service connection for squamous cell carcinoma is denied. REMAND The Veteran is seeking service connection for a right foot and left foot disability. The Veteran contends that during service around 1968, while he was installing an antenna, he fell 10 feet from a pole and landed on his feet. He was diagnosed with a sprained left ankle. Afterwards, he was put on light duty. Ever since that incident, he has had trouble with both feet. Service treatment records show that the Veteran sprained his left ankle when he twisted his foot in October 1968. The Veteran's service treatment records do not show any other injuries to the Veteran's feet. Postservice treatment records show that he was also diagnosed with Achilles tenosynovitis, plantar fasciitis, metatarsalgia, and equinus in both feet by a private doctor in February 2008. See April 2008 Medical Treatment Record. See February 2011 Hearing Testimony, July 2015 Hearing Testimony, and September 2010 Statement of Accredited Representative in Appealed Case. The Veteran was afforded a VA examination in July 2008. The Veteran reported pain in both feet in the heel area with radiation into the soles. His symptoms were more prevalent with standing and walking. The VA examiner diagnosed the Veteran with right foot sprain with residuals, and found no pathology in the left foot. The VA examiner concluded that the Veteran also did not have hammertoes, high arch, claw foot, or flat foot. The Board remanded the Veteran's claim for service connection for a right and left foot disability in June 2011 because it found that the July 2008 VA examination was inadequate. Specifically, the Board found that the July 2008 VA examination report to be inconsistent in the findings relative to the Veteran's clinical history, and that the VA examiner failed to provide opinions addressing the likelihood that any disabling conditions noted on the examination were related to his period of military service. The Veteran was afforded an addendum VA medical opinion in August 2011 by the same examiner who conducted the July 2008 VA examination to provide clarification. The VA examiner noted that he had reviewed the Veteran's claim file. He stated that in his opinion, it appeared that he was confused by which foot was injured in service at the time of the examination. However, the VA examiner concluded that the exam was unremarkable for pathology in either foot. The VA examiner stated that his diagnoses should have been no pathology found in the left foot and strain in right foot (unrelated to service). The August 2011 VA medical opinion is inadequate because the VA examiner did not provide a sufficient rationale for his opinion. Further, the VA examiner did not address the fact that the Veteran's prior medical history showed that the Veteran was diagnosed with Achilles tenosynovitis, plantar fasciitis, metatarsalgia, and equinus in both feet by a private doctor in February 2008. The VA examiner only diagnosed the Veteran with strain in the right foot. Therefore, on remand, a new VA examination should be provided to address these issues. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following actions: 1. Obtain updated and relevant VA treatment records and associate with the claims file. 2. After the above records request is completed, schedule the Veteran for a VA examination, with an examiner other than the one who conducted the July 2008 and August 2011 VA examination, to determine the nature and etiology of the Veteran's bilateral foot condition. All necessary tests should be performed. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should address the following: (A) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's diagnosed feet (right and left) condition other than calcaneal spurs, is related to his in-service activities, to include the incident that occurred where the Veteran sprained his left ankle. The VA examiner should comment on the fact that the Veteran was diagnosed with Achilles tenosynovitis, plantar fasciitis, metatarsalgia, and equinus in both feet by a private doctor in February 2008. (B) If the VA examiner determines that there is a chronic left foot disability that is etiologically related to the Veteran's service, the examiner should address whether it is at least as likely as not (i.e., 50 percent or greater probability) that any orthopedic diagnoses of the Veteran's right foot is caused or aggravate by any orthopedic diagnoses relating to the left foot. The VA examiner must address both causation and aggravation. If such aggravation is found to exist, it would be helpful if the examiner would provide an assessment, if possible, of the baseline level of impairment produced by the Veteran's orthopedic disability of his right foot prior to aggravation, and then provide a quantification, if possible, of the level of additional impairment above and beyond this baseline level imposed by the aforementioned service-related left foot disability or disabilities. If it is not possible to provide such an assessment, the examiner should so state. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 3. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. Undertake any additional development indicated by the results of the development requested above, and re-adjudicate the claim. If any of the issues remain denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs