Citation Nr: 1805799 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-07 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for a lung disability, to include due to asbestos exposure. 2. Entitlement to service connection for skin cancer, to include due to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.T.Stallings, Associate Counsel INTRODUCTION The Veteran had active service from July 1967 to July 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decision in February 2012 by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Houston, Texas. FINDINGS OF FACT 1. In a January 2009 decision, the RO denied the claim of entitlement to service connection for a lung disability due to a finding that there was no competent evidence of a nexus between the post-service chronic obstructive pulmonary disease (COPD) and service. Although notified of the Board's decision by a January 2009 letter, including his appellate rights, the Veteran did not appeal this decision, and the decision became final. 2. Evidence associated with the claims file since the January 2009 decision, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a lung disability and does not raise a reasonable possibility of substantiating the claim. 3. The Veteran served in or near the Korean Demilitarized Zone (DMZ) between April 1, 1968 and August 31, 1971, and is therefore presumed exposed to an herbicide agent during service. 4. The Veteran's skin cancer did not have its onset in service nor did it manifest to a compensable degree within one year following service discharge, nor is it otherwise related to service, to include herbicide exposure. CONCLUSIONS OF LAW 1. The January 2009 RO decision denying the claim of entitlement to service connection for a lung disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. As evidence received since the January 2009 RO decision is not new and material, the criteria for reopening the claim of entitlement to service connection for a lung disability is not met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. Skin cancer was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Neither the Veteran nor the representative has 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 duty to assist argument). II. New and Material Evidence-Lung Disability In June 2011, the Veteran submitted an application to reopen the claim of entitlement to service connection for a lung disability. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Hodge, 155 F.3d at 1363 (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). In a January 2009 decision, the RO denied the claim of entitlement to service connection for a lung disability. The RO determined that although the Veteran had a current disability of chronic obstructive pulmonary disease (COPD), there was a lack of evidence of a nexus to his military service. Specifically, the Veteran was claiming that his lung disability was due to exposure to asbestos from brake dust while working as a mechanic in the military. The RO had determined that the evidence of record indicated that there was no evidence of asbestos exposure while in service. The RO concluded that there was no basis to establish service connection as the disability was not related to the Veteran's service. The Veteran was notified of the RO's denial by a January 2009 letter, which included his appellate rights. He did not appeal this decision. Thus, the January 2009 RO decision is final as to the evidence then of record. See 38 U.S.C. § 7105(c); see also 38 C.F.R. §§ 3.156(a), 20.1103. Since the January 2009 decision, the Veteran has submitted additional lay statements and medical evidence that he states support his claim of service connection for COPD. He made such contentions in his June 2011 application and August 2012 notice of disagreement. Evidence associated with the claims file since the January 2009 RO decision, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection a lung disability and does not raise a reasonable possibility of substantiating the claim. Specifically, the Veteran's lay statements from August 2011 and February 2012 that his lung disability started at some point in the 1970s and that these symptoms have been present since service due to his mechanic services in the military, are the same or similar to the statements he made at the time of the January 2009 rating decision. Thus, these assertions were known to VA adjudicators when the claim for service connection was denied in January 2009. Likewise, the remainder of the new evidence in the form of VA treatment records does not pertain to establishing a nexus between the Veteran's service and his current lung disability. These records document treatment that the Veteran has received due to his lung disability. The Veteran having a current disability is not an unestablished fact, as COPD was diagnosed at the time of the January 2009 rating decision. Overall, the lay and medical evidence received since the January 2009 rating decision does not raise a reasonable possibility of substantiating the claim because the new evidence does not establish a nexus between the Veteran's lung disability and service. Accordingly, the application to reopen the claim of entitlement to service connection for a lung disability is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. III. Service Connection-Skin Cancer Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service 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). Certain conditions, including cancer, will be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year after the Veteran's discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In regard to herbicide exposure, a veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean DMZ in an area in which herbicides were known to have been applied during that period, 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 that service. 38 C.F.R. § 3.307(a)(6)(iv). If a veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). In addition, the Secretary of VA 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); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). The fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.304(d); Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009). Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to service connection for skin cancer, to include due to Agent Orange exposure. The reasons follow. The Board finds the Veteran has a current diagnosis of basal cell carcinomas, which was diagnosed in May 2001. The Board also finds that the Veteran meets the requirements for the presumption of herbicide exposure, as he has verified service in the Korea DMZ from January 23, 1968-January 8, 1969. However, the Veteran's diagnosed disability of basal cell carcinoma is not one of the disabilities listed under 38 C.F.R. § 3.309(e). As stated above, there is no presumption of service connection for any disability outside of those listed. Therefore, the Veteran's skin cancer disability cannot be service connected on a presumptive basis of herbicide exposure. The Board also finds that the Veteran's skin cancer cannot be service connected on a direct basis as well. For example, there is no nexus between the diagnosis of basal cell carcinoma and the Veteran's service. The Veteran claims that his already conceded in-service exposure to Agent Orange was the cause of his skin cancer. He specifically points out that he had an infected cyst on his ear in July 1968 while in service following his time spent in Korea, which he believes was the beginning stages of his disability. However, the Veteran's service treatment records do not note the cyst as being malignant. More so, the first documented evidence of skin cancer was in May 2001. Thus, the first showing of basal cell carcinoma was more than 30 years following service discharge. This evidence tends to establish that the Veteran's disability did not have its onset in service. The passage of many years between service separation and medical documentation of a disability tends to weigh against a finding that a disease or injury had its onset in service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). While the Veteran is competent to state his symptoms in regard to his disability, he is not competent to diagnose or determine the etiology of skin cancer. Lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); however, as to the specific issue in this case, the question of whether the Veteran's skin cancer was caused by his herbicide exposure is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Basal cell carcinoma is not the type of disability that is readily amenable to mere lay diagnosis or probative comment regarding their etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not submitted competent evidence supporting his claim that his skin cancer is related to his in-service herbicide exposure. "It is the veteran's 'general evidentiary burden' to establish all elements of his claim." Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). VA "is required to reject a disability claim if the claimant fails to put forth sufficient evidence showing that he suffered an injury or incurred a disease during service." Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009). In conclusion, the preponderance of the evidence is against a finding that the Veteran's skin cancer is related to service, to include herbicide exposure, and therefore weighs against the Veteran's claim of entitlement to service connection for skin cancer. As such, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49. ORDER The application to reopen the claim for service connection for a lung disability is denied. Entitlement to service connection for skin cancer, to include due to herbicide exposure, is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs