Citation Nr: 1759906 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 14-15 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for skin cancer of the ear. REPRESENTATION Appellant represented by: Jan Dils, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Poindexter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1988 to November 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO). In August 2014, the Board remanded the claim to the RO for additional development. In July 2015, a videoconference hearing was held before the undersigned; a transcript of the hearing is in the record. The claim was remanded again in November 2015. [The Board's November 2015 remand also addressed claims of service connection for migraines, obstructive sleep apnea, a psychiatric disability and loss of memory. A May 2017 rating decision granted service connection for migraines, obstructive sleep apnea and an unspecified anxiety disorder with mild memory loss. Therefore, these matters are resolved, and no longer on appeal.] FINDINGS OF FACT The Veteran's skin cancer of the ear was not manifested in service or within a year following his discharge from active duty, and the preponderance of the evidence is against a finding that it is related to his service. CONCLUSION OF LAW Service connection for skin cancer of the ear is not warranted. 38 U.S.C. §§ 101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 The, VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012). During the July 2015 Travel Board hearing, the Veteran's attorney waived notice of what is needed to substantiate the claim of service connection for skin cancer of the ear. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103 (c)(2) requires a Veterans Law Judge who conducts a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. During the July 2015 hearing, the undersigned identified the issue on appeal, explained what evidence is needed to substantiate the claim, and identified development to be completed. After the hearing, the case was remanded for development, to include for outstanding evidence and a VA examination). A deficiency in the conduct of the hearing is not alleged. The Board finds that there has been compliance with 38 C.F.R. § 3.103 (c)(2), in accordance with Bryant. The Veteran's service treatment records (STRs) are associated with his record, and VA has obtained pertinent records he identified. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially 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). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (including malignant tumors) may be presumed to be service connected if manifested to a compensable degree within a specified period of time postservice (one year for malignant tumors). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Competent lay evidence means 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 layperson. 38 C.F.R. § 3.159 (a)(2). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed, Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. 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. § 5107 (b); 38 C.F.R. § 3.102. 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 contends that he developed skin cancer of the ear due to frequent sunburns while deployed in Southwest Asia. The Veteran served in Southwest Asia from December 1990 to April 1991. His service treatment records (STRs) are silent for complaints, treatment, or diagnoses related to skin cancer of the ear. On March 2014 Gulf War examination, the examiner noted skin cancer or actinia keratosis on the antitragus and helix of the Veteran's left ear and a "rough" right helix. A June 2014 VA treatment record notes the Veteran's report of skin lesions on his ears and left hand. At the July 2015 Travel Board hearing, before the undersigned, the Veteran testified that he submitted sunburn on his ears two to three times a week during deployment in Southwest Asia. He testified that his ears constantly itched and would blister and peel. He testified that he used sunscreen but it did not help because the sunlight was intense. A September 2015 VA treatment record notes an irritated nevus and actinic keratoses on the Veteran's ears, temple and face. On November 2016 VA examination, the diagnosis was actinic keratoses (sun damaged skin) on the top of both ears. A history of squamous cell carcinoma in situ of the left ear and actinic keratosis of the right ear was noted. The examiner noted that the Veteran was not treated for skin cancer with medication in the 12 months preceding the examination, but had local excision surgery in July 2014. The examiner opined that the Veteran's skin cancer of the ear was less likely than not related to service. The examiner noted the Veteran's contention that frequent sunburn during deployment is the cause of his skin cancer. He noted that while UV radiation from sun exposure is the primary cause of skin cancer and skin damage, the majority of UV damage occurs during childhood and adolescence and manifests years later as skin cancer or actinic keratoses. The examiner noted that the Veteran had 20 years of sun exposure prior to deployment and 26 years of sun exposure following deployment and only five months of sun exposure in Southwest Asia. He stated that generally during deployment, soldiers wore helmets outdoors to minimize the effects of extreme heat. He concluded that it is less likely than not that the skin cancer and actinic keratoses resulted from the Veteran's brief deployment in Southwest Asia. It is not in dispute that the Veteran has/ had skin cancer of the ear; it was noted by VA examiners. The critical question remaining is whether there is competent evidence of a nexus between his service and his skin cancer of the ear. The Veteran's skin cancer of the ear was not manifested in service. His STRs are silent for complaints, treatment, findings, or diagnosis related to skin cancer of the ear. Consequently, service connection for skin cancer of the ear on the basis that it became manifest in service and persisted is not warranted. As the skin cancer of the ear is not shown to have been manifested in service or in the first postservice year, and continuity of the cancer symptoms postservice is neither shown nor alleged, service connection for skin cancer of the ear on a chronic disease presumptive basis (under 38 U.S.C. § 1112; 38 C.F.R. § 3.309(a)), or based on continuity under 38 C.F.R. § 3.303(b) is also not warranted. What remains for consideration is whether or not the Veteran's skin cancer is otherwise shown to be related to his service. That is a medical question beyond the scope of common knowledge or capability of resolution by lay observation. It requires medical expertise. See Jandreau v. Nicholson, 492 F.3rd 1372, 1377 (Fed. Cir 2007). The only competent (medical) evidence in the record that directly addresses the matter of a nexus between the Veteran's skin cancer of the ear and his service is in the November 2016 VA opinion, which is against the Veteran's claim. The examiner expressed familiarity with the entire record and clearly explained the rationale for his opinion that the Veteran's skin cancer is less likely than related to his service and his brief deployment in Southwest Asia. The Board finds the opinion to be probative evidence in the matter. The Veteran has not submitted any medical opinion or treatise evidence in support of his claim. He has not presented any competent and credible evidence of a relationship between his skin cancer of the ear and his service/events therein. The Board has considered the Veteran's lay statements that he suffered sunburn on his ears two to three times a week during deployment. While the Veteran is competent to report he sustained sunburns during his deployment, and the Board finds him credible, as a layperson, he is not competent to establish by his own opinion that his skin cancer of the ear resulted from the sunburns during deployment. Accordingly, the preponderance of the evidence is against the Veteran's claim, and his appeal in this matter must be denied. ORDER Service connection for skin cancer of the ear is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs