Citation Nr: 1803894 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-05 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Entitlement to service connection for basal cell carcinoma. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to January 1974, and from April 1978 to July 1984. These matters come to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2011 rating decision, service connection was denied for right hip disability. A notice of disagreement was filed in February 2012, a statement of the case was issued in January 2014, and a substantive appeal was received in February 2014. In an October 2015 rating decision, service connection was denied for basal cell carcinoma. A notice of disagreement was filed in November 2015, a statement of the case was issued in November 2016, and a substantive appeal was received in December 2016. The Veteran withdrew his request for a hearing in the December 2016 submission. FINDINGS OF FACT 1. The weight of the evidence is against a finding that a right hip disability manifested during the Veteran's period of active service or is otherwise due to active service. 2. The weight of the evidence is against a finding that basal cell carcinoma manifested during the Veteran's period of active service, within a year of separation from active service, or is otherwise due to active service, to include herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1133, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for basal cell carcinoma have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 1133, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has been provided notice with regard to his service connection claims. He bears the burden of demonstrating any prejudice with the notice. That burden has not been met in this case as the Veteran has not alleged such prejudice. Regarding the duty to assist, the evidence of record contains service treatment records, VA treatment records, private treatment records, and lay statements from the Veteran. There is otherwise no indication of relevant, outstanding records which would support the service connection claims. The Veteran was afforded a VA examination with regard to his right hip disability which will be discussed in detail below. The Veteran was not afforded a VA examination with regard to his claimed basal cell carcinoma and the lack of necessity in undergoing such examination will be discussed below. Service connection The Veteran asserts that he has a right hip disability that is due to his service-connected bunion, left big toe, status post bunionectomy, with osteoarthritis and Haglund deformity (10%); and, basal cell carcinoma, which he asserts is due to herbicide exposure. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). An award of service connection based solely on continuity of symptomatology only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The second and third Caluza elements may also be satisfied under 38 C.F.R. § 3.303(b), by the submission of (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1998). Additionally, for veterans who have served 90 days or more on or after December 31, 1946, certain chronic diseases, such as malignant tumors and degenerative arthritis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307(a), 3.309(a). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established. This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The rating activity is to determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Id. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). The evidence of record reflects that the Veteran had active service in the Republic of Vietnam during the applicable period, thus it is presumed that he was exposed to herbicides during active service. 11/18/2015 Military Personnel Record; 11/17/1984 DD 214 Certified Original - Certificate of Release or Discharge from Active Duty. It is provided that the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, early-onset peripheral neuropathy, Parkinson's disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma. 38 C.F.R. § 3.309 (e); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010); see 78 Fed. Reg. 173, 54763-66 (September 6, 2013). Hypertension is not a presumptive disease. See Notice, 67 Fed. Reg. 42,600 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 21,258 -21260 (May 7, 2009); see also Notice, 75 Fed. Reg. 32540 (June 8, 2010); see also Notice, 77 Fed. Reg. 47924-28 (Aug. 10, 2012). Basal cell carcinoma is not among the diseases associated with exposure to herbicides. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for melanoma and non-melanoma skin cancer (basal cell and squamous cell). See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258 -21260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155, 160 (1997). In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it pertains to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See 38 C.F.R. § 3.159(a)(2) ("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 the facts or circumstances and conveys matters that can be observed and described by a lay person."). 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. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Right hip disability A current diagnosis of a right hip disability has been established by the record. VA treatment records reflect an initial complaint of right hip pain in May 2009. 04/15/2017 CAPRI at 560. An October 2012 VA treatment record reflects the Veteran's complaints of right hip pain and foot pain when he walks 100 feet. 10/23/2015 CAPRI at 2. A January 2013 VA treatment record reflects the Veteran's complaints of hip pain that has been present for 3 to 5 years. Id. at 3. An April 2015 VA record reflects an assessment of osteoarthritis wit deformity, right hip. Id. at 309. An August 2015 VA examination report reflects a diagnosis of osteoarthritis, right hip. Thus, the first element of service connection has been established. The Veteran does not assert that a right hip disability manifested during his period of active service. Rather, the Veteran asserts that he has a right hip disability due to his service-connected bunion, left big toe, status post bunionectomy, with osteoarthritis and Haglund deformity (10%). Notwithstanding this, the Board reviewed the Veteran's service treatment records and they do not reflect any complaints, treatment, or diagnoses related to the right hip. In light of the competent evidence of complaints of pain and the competent lay assertions of right hip pain associated with his service-connected disability, an etiological opinion was sought in August 2015. The examiner acknowledged the Veteran's complaints and treatment related to his foot and hip. The examiner explained that osteoarthritis results from a complex interplay of multiple factors, such as aging, occupation, trauma, and repetitive small insults over time. Large studies of osteoarthritis have long recognized the aging process to be the strongest risk factor for bony degeneration, particularly within the spine. The National Health and Nutrition Examination Survey found prevalence of osteoarthritis <1 percent in ages 25-24 years of age and >80% in people over age 55. Fusion of a joint can cause a substantially altered gait due to asymmetric loading, which in turn can cause damage to the alternate side. However, this is usually only seen with joint fusion, loss of limb or leg length discrepancy. Therefore, based on the fact that the Veteran has a diagnosis of osteoarthritis of the hip with greatest risk factor for development of osteoarthritis being age, and the fact that the Veteran does not have fusion of a large joint, paralytic type limp, loss of limb or leg length discrepancy, it is less likely than not that his current right hip osteoarthritis is secondary to or aggravated beyond normal progression by his left foot Mitchell bunionectomy in service. As support, the examiner referenced UpToDate 2015 - Risk factors for and possible causes of osteoarthritis. The Board has given consideration to the Veteran's assertions, treatment records, and the competent medical opinion of record. There is no probative, competent evidence to support a finding that his right hip disability is due to a service-connected disability. In this regard, the record does not reflect that the Veteran has the requisite medical expertise to find that his right hip disability is due to a service-connected disability. His opinion in this regard is not competent, given the complexity of the medical question involved. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (recognizing that orthopedic ACL tear is too medically complex for lay evidence to competent to diagnose); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (stating that lay persons not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). Here, relating his current right hip disability to this service-connected bunion, left big toe. As such, the Veteran's opinion carries no weight as to etiology. In light of the current diagnosis of a right hip disability and the Veteran's lay assertions pertaining to right hip pain, the Board sought a medical opinion which returned with negative conclusions and supporting rationale. The Board finds that the competent medical opinion from persons with specialized training and experience outweighs the lay contentions of the Veteran, especially in the case of a complex disorder such as a relationship between his hip and foot. The August 2015 examiner found no relationship between his right hip disability and his service-connected disability. Given the depth of the examination report and the fact that the opinion was based on a review of the applicable record and consideration of the pertinent facts and medical history of the Veteran, the Board finds such opinion is important evidence that weigh against a linkage to a service-connected disability. Based on the current state of record, to include the VA opinion of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's right hip disability manifested in service or is due to or aggravated by a service-connected disability. There is no contrary competent opinion of record. The Board notes that arthritis is a chronic disease subject to special presumptive provisions under 38 C.F.R. § 3.307, 3.309. However, such was not manifested within the first post-service year and thus such provisions are inapplicable here. As a chronic disease under 38 C.F.R. § 3.309(a), credible evidence of continuity of symptomatology could enable a grant of service connection even in the absence of favorable nexus evidence. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, while receiving treatment in January 2013, the Veteran stated that his right hip pain had been present for 3-5 years. The Board finds such evidence weighs against continuity of symptomatology. Thus, the evidence weighs against a finding of continuity of symptomatology and an award of service connection solely on this basis is not appropriate here. In conclusion, the most probative, competent evidence is against a link between a right hip disability and active service and a service-connected disability. As the preponderance of the evidence is against the issue, reasonable doubt does not arise, and service connection is denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Basal cell carcinoma A diagnosis of basal cell carcinoma has been established by the record. A January 2013 VA treatment record reflects a papule on his upper back with telangiectases and clear with translucent borders concerning for basal cell carcinoma and a small papule with same characteristics in the same area. He had growing lesions on his right upper back and right hip that had been present for 3 to 5 years. 10/23/2015 CAPRI at 3-4. The Veteran underwent an excision of the left shoulder and no residual basal cell carcinoma was identified. 08/27/2015 CAPRI. He underwent excision of midline chest and residual basal cell carcinoma was noted. 10/23/2015 CAPRI at 14. A biopsy of the right temple showed basal cell carcinoma, nodular. Id. at 10. A biopsy of the right hip showed seborrheic keratosis, irritated with actinic atypia. Id. at 6. The first element of service connection - a diagnosis of basal cell carcinoma - has been established. The Veteran does not assert that basal cell carcinoma manifested during his period of active service. Rather, the Veteran asserts that he has a basal cell carcinoma due to exposure to herbicides. Notwithstanding this, the Board reviewed the Veteran's service treatment records and they do not reflect any complaints, treatment, or diagnoses related to basal cell carcinoma. With regard to the Veteran's assertion that such condition is due to exposure to herbicides, the Board observes that the Veteran has not submitted any medical evidence in support of this claim. While acknowledging that the Veteran was exposed to Agent Orange during service, there is no evidence to support a finding that basal cell carcinoma is due to such exposure and such disability does not warrant presumptive service connection. The Veteran does not otherwise have the requisite medical expertise to find that his basal cell carcinoma is due to service or due to Agent Orange exposure. His opinion in this regard is not competent, given the complexity of the medical question involved, to include the etiology of the basal cell carcinoma and lipomas in question. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (recognizing that orthopedic ACL tear is too medically complex for lay evidence to competent to diagnose); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (stating that lay persons not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). As the Veteran's basal cell carcinoma was not shown in service, and the records contain no suggestion of a causal link between his basal cell carcinoma and active service, to include herbicide exposure, the Board finds that the preponderance of the evidence is against the claim of service connection. The Board declines to obtain a medical nexus opinion with respect to the issue of entitlement to service connection, because there is no evidence of pertinent disability in service, and no evidence indicating a relationship between his service, to include herbicide exposure, and basal cell carcinoma. Thus, while basal cell carcinoma manifested over 20 years after separation from service, there is no indication that this disability is associated with service. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also Charles v. Principi, 16 Vet. App. 370 (2002). Indeed, in view of negative service treatment records, and the lack of diagnosis of this disability or any manifestations for many years post-service, any opinions relating this disability to service would certainly be speculative. Moreover, the evidence of record does not suggest that his basal cell carcinoma is due to herbicide exposure. Service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. The duty to assist is not invoked, even under McLendon, where "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C. § 5103A(a)(2). The act of filing a claim and simply stating the condition is related to service is not enough to trigger the duty to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Courts have held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Consequently, a VA examination is not warranted for service connection for a basal cell carcinoma. McLendon, 20 Vet. App. at 83 The Board notes that malignant tumors are a chronic disease subject to special presumptive provisions under 38 C.F.R. § 3.307, 3.309. However, such was not manifested within the first post-service year and thus such provisions are inapplicable here. As a chronic disease under 38 C.F.R. § 3.309(a), credible evidence of continuity of symptomatology could enable a grant of service connection even in the absence of favorable nexus evidence. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Thus, the evidence weighs against a finding of continuity of symptomatology and an award of service connection solely on this basis is not appropriate here. In sum, the Board concludes that the preponderance of the evidence is against the claim of service connection for basal cell carcinoma. It follows that the Board is unable to find such a state of approximate balance of the positive evidence to otherwise warrant a favorable decision. 38 U.S.C. § 5107(b). ORDER Service connection for a right hip disability is denied. Service connection for basal cell carcinoma is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs