Citation Nr: 1806251 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 10-16 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for skin cancer, to include as due to herbicide exposure and exposure to contaminated water at Camp Lejeune. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and Daughter ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied service connection for skin cancer, to include as due to herbicide exposure. In his April 2010 substantive appeal the Veteran indicated he wanted a video hearing, but properly withdrew that request in September 2010. In a subsequent July 2013 substantive appeal, the Veteran requested an in-person hearing in Washington, D.C., but noted that he wanted a hearing without his presence. The Board notified the Veteran that for a hearing in which the representative alone presents argument to be granted, good cause must first be shown. See 38 C F R § 20.700. The Board then denied the request for failure to show good cause. In a June 2017 letter, the Board informed the Veteran that his hearing was scheduled for August 8, 2017 at the Board's Central Office in Washington, D.C. In a decision dated in January 2015, the Board denied the Veteran's appeal, and he appealed the decision to the United States Court of Appeals For Veterans Claims (Court). In September 2015, the Veteran, through his attorney, and the Secretary of Veterans Affairs, submitted a Joint Motion for Remand (JMR). In an Order also dated in September 2015, the Court granted the JMR, vacated the January 2015 Board decision, and remanded the case to the Board for further appellate review consistent with the JMR. Pursuant to the Court remand, the Board remanded the case in November 2015 for additional development. In an August 2017 Board decision, the Veteran's claim was remanded in order to afford the Veteran a hearing before the Board. The Veteran testified at a hearing before the Board in September 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's currently diagnosed skin cancer is not causally or etiologically related to his active service. CONCLUSION OF LAW Criteria for service connection for skin cancer have not been met. 38 U.S.C. §§ 1110, 1133, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided. Additionally, neither the Veteran, nor his representative, has either 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, adjudication of his claim at this time is warranted. With regard to the service connection claim being decided herein, the Board remanded the claim to afford the Veteran a hearing before the Board. As noted, the Veteran testified at a hearing in September 2017. As such, because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). 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). Service treatment records, VA treatment records, and private treatment records have been obtained. A medical opinion was obtained from a VA practitioner (the report of which has been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiner had a full and accurate knowledge of the Veteran's disability and contentions, and grounded the opinion in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor his representative has objected to the adequacy of the opinion. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Historically, the Veteran submitted a claim of entitlement to service connection for skin cancer in October 2008. The claim was denied in an August 2009 rating decision. The Veteran appealed the denial of his claim and this appeal ensued. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1133; 38 C.F.R. §§ 3.303, 3.304. Establishing service connection requires evidence of (1) a current disability; (2) an 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 (Fed. Cir. 2004). Presumptive service connection is available on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent within a specified period in 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. 38 U.S.C. § 1116(a). In this case, the records do not indicate Vietnam service and as such, service connection is not warranted on a presumptive basis. VA has conceded that the Veteran was exposed to contaminated water at Camp Lejeune during his military service. VA has acknowledged that persons residing or working at U.S. Marine Corps Base Camp Lejeune from August 1957 through December 1987 potentially were exposed to drinking water contaminated with volatile organic compounds (VOCs). See Veterans Benefits Administration (VBA) Fast Letter 11-03 (January 11, 2011). In the early 1980s, it was discovered that two on-base water-supply systems at Camp Lejeune were contaminated with the VOCs trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent. Benzene, vinyl chloride, and other VOCs also were found to be contaminating the water-supply systems. See VBA Training Letter 11-03 (Revised) (November 29, 2011). Until scientific evidence shows otherwise, it will be assumed by VA that any Veteran who served at Camp Lejeune between 1957 and 1987 potentially was exposed in some manner to the full range of chemicals known to have contaminated the water there during this time period. Id. The National Academy of Sciences' National Research Council (NRC) published its report, "Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects," in 2009. This report included a review of studies addressing exposure to TCE and PCE, as well as a mixture of the two, and a discussion of disease manifestations potentially associated with such exposure. Fourteen diseases were identified as having limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture exposure. These include esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. See VBA Training Letter 11-03 (Revised) (November 29, 2011), Appendix B. The list of 14 diseases in this NRC report is not an exhaustive list, however. Private treatment reports from West Texas Medical Associates reflect that the Veteran was seen for skin lesions beginning in September 1996. VA treatment reports reflect treatment for skin cancer in March 2010. The Veteran was noted to have been treated for skin cancer in the past at outside institutions. A medical opinion was obtained from a VA practitioner in May 2016. The examiner reviewed the claims file and relevant medical records and considered the Veteran's contention that his skin cancer was related to exposure to Camp Lejeune contaminated water (CLCW). The examiner indicated that the Veteran had been treated for basal cell and squamous cell carcinomas beginning in 1978. The examiner confirmed that diagnoses of basal and squamous cell carcinomas and opined that the Veteran's disability was not caused by or related to his exposure to CLCW. The examiner noted that according to the American Cancer Society (ACS), basal cell carcinoma (BCC) is not only the most common type of skin cancer, but the most common type of cancer in humans, accounting for approximately 80 percent of skin cancers. The ACS also reports that that squamous cell carcinoma (SCC) is the second most common type of skin cancer and account for approximately 20 percent of skin cancers in the United States. The examiner stated that both types of skin cancer typically occur on sun-exposed areas of skin like the face, ears, neck, lips, and backs of the hands. The examiner also noted that in the absence of solvent exposure being identified as a risk factor for the development of basal cell and/or squamous cell carcinomas and the absence of any findings of an increased incidence of basal cell and/or squamous cell carcinomas developing in individuals exposed to the water at Camp Lejeune, and the presence of several known risk factors for basal cell carcinoma (i.e., the Veteran's gender, his being Caucasian, his smoking history, his extremely short stay at Camp Lejeune (less than 2 months), his having blue eyes, and the fact that he has evidence of excessive sun exposure and refinery exposure), BCC and SCC are not due to his exposure to CLCW. The examiner cited to a multitude of medical treatise information to explain his rationale. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for skin cancer. The Veteran contends that his skin cancer is related to his exposure to contaminated water at Camp Lejeune. However, no medical opinion or other medical evidence relating the Veteran's skin cancer to service has been presented. Moreover, the only medical opinion of record indicates that the Veteran's skin cancer is not related to his active service, including exposure to CLCW. The examiner provided a clear and thorough rationale that was grouned in medical literature to support his findings. There is no medical opinion of record to contradict the VA examiner's opinion. Although the Veteran contends that he has skin cancer which is related to his service, he has submitted no competent medical evidence or opinion to corroborate that contention. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The Veteran's opinion is insufficient to provide the requisite etiology of the claimed skin cancer because such matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (2017); Duenas v. Principi, 18 Vet. App. 512 (2004); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for skin cancer and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. ORDER Entitlement to service connection for skin cancer, to include as due to herbicide exposure and exposure to contaminated water at Camp Lejeune is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs