Citation Nr: 1756077	
Decision Date: 12/05/17    Archive Date: 12/15/17

DOCKET NO.  09-21 579	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUES

1.  Entitlement to an effective date prior to April 3, 2008 for the grant of entitlement to a total disability rating based on individual unemployability (TDIU).

2.  Entitlement to service connection for Epstein-Barr virus, to include as due to radiation exposure.

3.  Entitlement to service connection for an eye disorder, to include as due to radiation exposure.

4.  Entitlement to a compensable rating for basal cell carcinoma (on the left eyebrow, left medial canthus and frontalium of the nose).


REPRESENTATION

Veteran represented by:	Robert P. Walsh, Attorney


ATTORNEY FOR THE BOARD

T. Carter, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from January 1959 to January 1963.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah which denied, in part, the issue of entitlement to a TDIU.

This case also comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the VA RO in Salt Lake City, Utah.  During the course of the appeal, the claims file was transferred to the RO in Boise, Idaho.

The Veteran's request to withdraw his hearing request before the Board was received in March 2015.

In August 2016, the Board determined that new and material evidence had been received to reopen the claim of service connection for Epstein-Barr virus and remanded the case for additional evidentiary development.  The issue of entitlement to service connection for non-basal cell carcinoma skin disorder was granted in an August 2017 VA rating decision, which represents a full grant of the benefits sought so it is no longer on appeal before the Board.  The remaining issues remanded by the Board in August 2016 have been returned to the Board for further appellate review.

In light of the Veteran's November 2017 VA Form 21-4138, if the Veteran wishes to claim entitlement to service connection for osteoporosis due to radiation exposure, he is advised that a claim for benefits must be submitted on the application form prescribed by the Secretary.  38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017).


FINDINGS OF FACT

1.  The Veteran's claim for entitlement to a TDIU was received on April 3, 2008.  

2. The evidence shows that he became unable to obtain and maintain gainful employment due to service-connected disabilities more than one year prior to the April 3, 2008 claim.  

3.  The Veteran's Epstein-Barr virus and eye disorder are not listed among the diseases specific to radiation-exposed veterans under 38 C.F.R. § 3.309(d) nor are "radiogenic diseases" listed under 38 C.F.R. § 3.311.

4.  The Veteran was exposed to radiation while in service.

6.  The Veteran's current diagnosis of Epstein-Barr virus was not demonstrated in or related to an occurrence during active service, to include exposure to radiation therein.

7.  The Veteran's current eye disorder, diagnosed as bilateral age-related nuclear sclerotic cataract and bilateral age-related dry macular degeneration, was not demonstrated in or related to an occurrence during active service, to include exposure to radiation therein.

8.  For the entire appeal period, the Veteran's service-connected basal cell carcinoma (on the left eyebrow, left medial canthus and frontalium of the nose) (other than service-connected residual scarring from basal cell carcinoma and squamous cell carcinoma (on the left lower medial eyelid, philtrum of the nose, left postauricular, left lateral neck, and left superior ear) and residual scarring from basal cell carcinoma (removal on right upper eyelid and right temple)) has not been manifested by pain, instability, or disabling effects, to include impairment of function.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to an effective date earlier than April 3, 2008, for the grant of entitlement to a TDIU have not been met.  38 U.S.C.A. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400, 4.16 (2017).

2.  The criteria for entitlement to service connection for Epstein-Barr virus, to include as due to radiation exposure, have not been met.  38 U.S.C.A. § 1131, (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017).

3.  The criteria for entitlement to service connection for an eye disorder, to include as due to radiation exposure, have not been met.  38 U.S.C.A. § 1131, 38 C.F.R. §§ 3.102, 3.303.

4.  The criteria for entitlement to a compensable rating for basal cell carcinoma (on the left eyebrow, left medial canthus and frontalium of the nose) have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.118, Diagnostic Code 7800-7819 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to 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 a duty to assist argument).


Earlier Effective Date for TDIU

The Veteran contends that he is entitled to an effective date earlier than April 3, 2008 for the grant of entitlement to a TDIU.

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.

VA must look to all communications from a veteran which may be interpreted as applications or claims - formal and informal - for benefits.  In particular, VA is required to identify and act on informal claims for benefits.  38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a).  VA has a duty to fully and sympathetically develop the veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations.  Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).  The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appeal, including all documents and oral testimony in the record prior to the Board's decision.  Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994).  But in determining whether an informal claim has been made, VA is not required to read the minds of the Veteran or his representative.  Cintron v. West, 13 Vet. App. 251, 259 (1999). 

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be pain or furnished to any individual under the laws administered by the Secretary.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p).  Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim.  Such informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a).  VA is required to identify and act on informal claims for benefits.  38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a).  But VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon, 12 Vet. App.at 35.

The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing.  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006).

A claim of entitlement to a TDIU is essentially a claim for an increased rating.  An exception to 38 C.F.R. § 3.400 provides that in cases involving increases for disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date; otherwise, the effective date will be the date of receipt of the claim.  See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997).  The question of when an increase in disability is factually ascertainable is based on the evidence in the veteran's claims folder.  Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992).

In the present case, the claim for entitlement to a TDIU was raised on April 3, 2008.  Prior to that date, there is no indication of record that the Veteran demonstrated intent, in writing, to seek entitlement to a TDIU.  See 38 C.F.R. §§ 3.1(p), 3.155(a); Brannon, 12 Vet. App. at 35.  Thus, under 38 C.F.R. § 3.400(o)(2), it is necessary to determine whether, sometime between April 3, 2007 and April 2, 2008, the Veteran became unable to work due to his service-connected disabilities.

VA will grant a TDIU when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities.  38 C.F.R. §§ 3.340, 3.341, 4.16.  

Significantly more than one year prior to the date of claim on April 3, 2008, the Veteran's February 1997 Social Security Administration's (SSA) favorable award letter was of record (initially obtained and associated with the record in November 1997).  It was determined that the Veteran had been disabled and unable to work since November 5, 1995 (the date he completely stopped working) due to the severity of his impairments, to include his service-connected acquired psychiatric disability.  As the Veteran became unemployable due to his service-connected disabilities more than one year prior to filing his TDIU claim, an earlier effective date cannot be granted because he did not file a claim for TDIU within one year of becoming unemployable due to his service-connected disabilities in the 1990s.  The date he became unemployable was well before one year prior to the April 3, 2008 claim for a TDIU and cannot establish an earlier effective date based upon it being factually ascertainable that he occurred within one year.  The provisions of 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 mean that if the increase (or in this case, unemployability) first occurred within one year prior to the claim, the increase is effective as of the day the increase was "factually ascertainable."  If the increase occurred more than one year prior, the increase is effective the date of the claim.  Gaston v. Shinseki, 605 F. 3d 979 (Fed. Cir. 2010); see also Harper, 10 Vet. App. at 126-127.  

As a result, the proper effective date for entitlement to a TDIU is April 3, 2008, the date of his claim.  Entitlement to an earlier effective date is denied.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(2).

Service Connection for Epstein-Barr Virus and Eye Disorder

Due to the similar disposition for the claims of service connection for Epstein-Barr virus and eye disorder, the Board will address them in a common discussion below.  The Veteran contends that both disorders on appeal are the result of radiation exposure during his period of active service.

At the outset, the Board finds the criteria for a current disability have been met.  A January 2012 VA treatment record and July 2017 VA examination report document a diagnosis of Epstein-Barr virus.  Following a February 2017 VA Disability Benefits Questionnaire (DBQ) examination for eye conditions, the examiner concluded the Veteran was diagnosed with bilateral age-related nuclear sclerotic cataract in 2011 and bilateral age-related dry macular degeneration in 2012.

Certain disabilities, specific to radiation-exposed veterans, may be service connected on a presumptive basis.  See 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d); Davis v. Brown, 10 Vet. App. 209, 211 (1997).  In this case, the Veteran's current diagnoses of Epstein-Barr virus and eye disorder are not listed among the diseases specific to radiation-exposed veterans under 38 C.F.R. § 3.309(d).  As a result, service connection on a presumptive basis as due to a disease specific to radiation-exposed veterans is not available in this case.

Next, service connection for "radiogenic diseases" as due to exposure to ionizing radiation provides special procedures for evidentiary development and adjudication of a claim under 38 C.F.R. § 3.311.  A "radiogenic disease" means a disease that may be induced by ionizing radiation, and includes non-malignant thyroid nodule disease.  38 C.F.R. § 3.311(b)(2)(xvii).  In this case, the Veteran's current diagnoses of Epstein-Barr virus and eye disorder are not "radiogenic diseases" listed under 38 C.F.R. § 3.311.  As a result, the proper development and adjudication for the claims on appeal as due to exposure to ionizing radiation under 38 C.F.R. § 3.311 is not warranted.

When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1131.  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).

With regard to whether an in-service incurrence or aggravation of a disease or injury occurred, review of the Veteran's service treatment records are silent as to any complaints, symptoms, treatment, or diagnosis pertaining to the Epstein-Barr virus or an eye disorder.  Nevertheless, VA has conceded the Veteran's exposure to radiation in service based on his participation in Operation Dominic I in 1962, as noted in service personnel records and March 2007 and August 2017 VA rating decisions.

The Board finds the evidence does not show these disabilities are either related to service, to include his radiation exposure, or incurred in service.

With regard to the claim on appeal for Epstein-Barr virus, medical opinions were provided in May 2015 and July 2017.

In July 2017, the examiner opined that it is less likely than not that Epstein-Barr virus was incurred in or caused by the claimed in-service injury, event, or illness.  It was explained, in part, that "[t]here is no mention in Up-To-Date about radiation being associated with [Epstein-Barr virus] in any way [and] [v]iruses and radiation are not related."

More recently and pursuant to the August 2016 Board remand, another examiner in July 2017 opined that it is less likely than not that any identified Epstein-Barr virus disorder began during service or is causally related to the Veteran's exposure to ionizing radiation in 1962."  The following was explained, in part:

[A]pproximately 90 percent of the adult population have had exposure to, and evidence of infection with the EB virus at some point in their lives.  It is the cause of infectious mononucleosis, and is one of the most common herpesvirus types in humans, being generally rather benign.  [In addition,] [t]here is no indication in the medical literature in a current UpToDate medical database review of a connection between exposure to ionizing radiation and development of EB virus infection.

With regard to the claim on appeal for an eye disorder, a medical opinion was provided in May 2015.  The examiner opined that it is less likely than not that the Veteran's current diagnosed eye disorder was incurred in or caused by the claimed in-service injury, event, or illness.  The following was explained, in part:

The greatest risks for Macular Degeneration (MD) are age and smoking history, per Up-To-Date.  Family history is also associated with increased risk.  MD risk increases starting at age 50, and this [V]eteran is 74.  Veteran also has at least 30-pack year history of smoking, per 2002 [primary care physician-history and physical].  [In addition,] [t]here is no mention of radiation as a risk factor for Macular Degeneration in Up-To-Date.

More recently and pursuant to the August 2016 Board remand, the Veteran underwent an examination for the eyes in July 2017.  The examiner opined that the "Veteran has diagnosed eye conditions including nuclear sclerotic cataracts and dry macular degeneration that are less likely as not incurred in or caused by the exposure to radiation during service."  The following as explained:

The [V]eteran was diagnosed with dry macular degeneration and nuclear sclerotic cataracts in both eyes at 70 years of age.  The time delay between the diagnosis of these eye conditions and his exposure to radiation in the military was nearly 50 years.  A variety of risk factors for macular degeneration have been identified and include age (starting over age 50 and more prevalent over age 65), smoking (relative risk of 2 to 4 times compared to non-smokers), family history, and cardiovascular disease.  The [V]eteran was over the age of 65 when diagnosed with macular degeneration.  The [V]eteran has a significant smoking history and is currently being treated to stop smoking.  The family history for macular degeneration is unknown and the veteran does not have any diagnosis of cardiovascular conditions.  A review of current medical literature did not show a relationship between radiation exposure and dry macular degeneration.  Radiation retinopathy is due to retinal ischemia which can occur following exposure to radiation.  The [V]eteran however did not have this retinal condition.  Cataract formation is the primary ocular complication associated with ionizing radiation.  Among the major types of cataracts, [posterior subcapsular cataract (PSC)] is the most common form of cataract commonly associated with ionizing radiation.  The [V]eteran does not have PSC cataracts, but has nuclear sclerotic cataracts which are due to the effects of ageing.

Moreover, the initial onset of the Veteran's disabilities were multiple years after separation from service, and demonstrates a post-service incurrence.  Review of VA treatment records dated during the appeal period are silent for any complaints or treatment relevant to the later-diagnosed Epstein-Barr virus and eye disorder.

The Board finds that the most probative evidence of record demonstrates that the Veteran's current Epstein-Barr virus and eye disorder, is not related to active service, and the eye disorder is more likely due to his age.  Although the Veteran is competent to report observable symptomatology regarding his Epstein-Barr virus and eye disorder, the Board finds he does not have the experience, education, training, and expertise to provide an opinion regarding the etiology of these current diagnoses, as this would require knowledge of biological processes and pathology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  In sum, the Board gives more probative weight to the May 2015 and July 2017 VA examiners' opinions, collectively, rendered by a trained medical professionals and finds that the third criterion to establish service connection on a direct basis has not been met.  See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.

In reaching this decision the Board considered the doctrine of benefit of the doubt, however, as the preponderance of the evidence is against these claims, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Higher Rating for Service-Connected Basal Cell Carcinoma

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor.  38 C.F.R. § 4.3.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, such as for the service-connected basal cell carcinoma in this case, the present level of disability is of primary concern.  Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings.  38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The Board considers whether a compensable rating for basal cell carcinoma is warranted at any time since or within one year prior to the date of claim on February 14, 2012.

Diagnostic Code 7819 provides that benign skin neoplasms are to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or impairment of function.  38 C.F.R. § 4.118.

At the outset, the Board notes that the service connection has already been granted for residual scarring from basal cell carcinoma and squamous cell carcinoma (on the left lower medial eyelid, philtrum of the nose, left postauricular, left lateral neck, and left superior ear) at 10 percent disabling effective from February 14, 2012, and for residual scarring from basal cell carcinoma (removal on right upper eyelid and right temple) at 0 percent effective from May 11, 2015, both as noted in the August 2017 VA rating decision.  See 38 C.F.R. § 4.118, Diagnostic Code 7800.  The ratings assigned for these scars are not on appeal.  

Next, Diagnostic Codes 7801 and 7802 are not applicable as they provides ratings for scars not of the head, face, or neck.  38 C.F.R. § 4.118.  In this case, the service-connected basal cell carcinoma is located on the left eyebrow, left medial canthus and frontalium of the nose.

Diagnostic Code 7804 provides compensable ratings from 10 percent to 30 percent for scar(s) that are unstable or painful.  38 C.F.R. § 4.118.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Id. at Diagnostic Code 7804, Note (1).

Diagnostic Code 7805 provides that scars, other (including linear scars) and other effects of scars be evaluated under diagnostic codes 7800, 7801, 7802, and 7804.  38 C.F.R. § 4.118.  Any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 are to be evaluated under an appropriate diagnostic code.  Id.

At a September 2013 VA DBQ examination for skin diseases through Veterans Evaluation Services, the examiner noted, in part, that none of the scars are painful/unstable but the Veteran has some deformity from the effects of prior surgery, specifically noted as skin sensitivity to breakouts when stressed or tired.

At a December 2013 VA DBQ examination for skin diseases, the examiner noted, in part, that the Veteran's medical history did not include any painful or unstable scars or functional limitations due to the scars.

Review of VA treatment records show that a July 2011 dermatology session revealed warm thin and atrophic skin with hyperkeratotic crusty patches on head and face, no other lesions of consequence noted, and assessed with actinic keratosis (AKs).  Pursuant to an annual physical examination in March 2011 review of his skin revealed AKs on face and neck.  In January 2012 he underwent biopsies which revealed nodular and superficial basal cell carcinoma on left lateral neck.  Review of the remaining treatment records are silent for any reports of pain, instability, or disabling effects of the service-connected basal cell carcinoma (on the left eyebrow, left medial canthus and frontalium of the nose).

After review of the pertinent evidence of record, as discussed above, the Board finds that the most probative evidence of record does not show the Veteran's service-connected basal cell carcinoma (on the left eyebrow, left medial canthus and frontalium of the nose) has been manifested by a pain, instability, or disabling effects, to include impairment of function, not considered under Diagnostic Codes 7800 through 7804 at any time since or within one year prior to the date of claim on February 14, 2012.  As such, a compensable rating is not warranted under Diagnostic Codes 7804 or 7805.

The Board has considered the Veteran's reported history of symptomatology related to the service-connected basal cell carcinoma (on the left eyebrow, left medial canthus and frontalium of the nose).  He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through ones senses.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  In this case, the Veteran is not competent to identify specific level of this service-connected disability according to the appropriate Diagnostic Codes and relevant rating criteria.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  In this case, such competent evidence concerning the nature and extent of the Veteran's disability has been provided in the medical evidence of record.  As such, the Board finds these records to be more probative than the Veteran's subjective reported worsened symptomatology.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

The Board has considered the possibility of staged ratings and finds that the schedular rating for the service-connected disability on appeal has been in effect for the appropriate period on appeal.  Accordingly, staged ratings are inapplicable.  See Hart, 21 Vet. App. at 505.


ORDER

An effective date earlier than April 3, 2008, for the grant of entitlement to a TDIU is denied.

Service connection for Epstein-Barr virus, to include as due to radiation exposure, is denied.

Service connection for an eye disorder, to include as due to radiation exposure, is denied.

A compensable rating for basal cell carcinoma (on the left eyebrow, left medial canthus and frontalium of the nose) is denied.



_________________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs