Citation Nr: 1806305 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-18 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a skin disorder, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Mary Anne Royle, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1951 to April 1955 and from September 1956 to September 1972. The Veteran's active duty included service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In December 2011, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A copy of the transcript of that hearing has been associated with the claims file. In its January 2013 decision, the Board denied the Veteran's claim and he, in turn, appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2013, counsel for VA's Secretary and the Veteran's attorney filed a motion, vacating the Board's decision and remanding the matter to the Board for further proceedings consistent with the joint motion (JMR). The Board remanded the case to the Agency of Original Jurisdiction (AOJ) in March 2014, with directives consistent with the JMR. The case has returned to the Board for further appellate action. 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) (2014). FINDING OF FACT The Veteran's skin disorder is not related to service, to include as due to herbicide exposure. CONCLUSION OF LAW A skin disorder was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Remand Compliance As noted in the Introduction, this case was remanded to the AOJ for actions consistent with the July 2013 JMR in March 2014. The Board is satisfied that there has been substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-67 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1999) (holding that the Board errs as a matter of law when it fails to ensure compliance with its remand orders). II. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). During the December 2011 Travel Board hearing, the undersigned VLJ clarified the issue decided here and asked questions designed to elicit any potentially relevant evidence in the Veteran's possession. Furthermore, the VLJ described for the Veteran the type of evidence necessary to substantiate his claims. This action satisfied 38 C.F.R. § 3.103 (2017). Neither the Veteran nor his attorney 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). III. Service Connection Veterans are entitled to compensation from VA if they develop a disability resulting from personal injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110, 1131 (2014); see also 38 C.F.R. § 3.303 (2017). Generally, in order to establish service connection on a direct basis, three elements must be established. These elements are: "(1) the existence of a present disability; (2) an 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," which is often referenced as the "nexus requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's active duty included service in the Republic of Vietnam; therefore, in-service exposure to certain herbicide agents is presumed. See 38 U.S.C. § 1116(f) (2014); 38 C.F.R. § 3.307(a)(6)(iii) (2017); DA Form 20. In the case of a Veteran exposed to certain herbicide agents, service connection for certain diseases will be presumed if they become manifest to a degree of 10 percent or more within a specified time period. See 38 U.S.C. § 1116 (2014); 38 C.F.R. §§ 3.307, 3.309 (2017). As relevant to this claim, if chloracne or other acneform disease consistent with chloracne becomes manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to certain herbicide agents during active service, presumptive service connection is warranted. Evidence The Veteran contends that his skin disorder was incurred in active service, noting that extensive sun exposure during active service caused a skin disorder to develop. Alternatively, the Veteran advances that his skin disorder was caused by exposure to certain herbicide agents during active service in Vietnam. A review of the Veteran's service treatment records (STRs) reveals that the Veteran's 1955 Discharge Examination disclosed that skin was normal and a laceration scar was noted on the Veteran's loft lower leg-qualified as the result of a barbed wire injury that the Veteran incurred when he was 13. In September 1956, athletes foot was noted in a record. A 1958 Service Examination disclosed that skin was normal. A May 1958 record noted that the Veteran had a skin wart (verruca) excised from his his right thumb. An October 1958 record shows that a corn was present on the Veteran's foot; and an October 1958 Service Examination revealed that skin was normal. In his October 1958 Discharge and Reenlistment Examination, the Veteran reported that did not have any tumors, growths, cysts, or cancer; he also indicated that his skin and lymphatics were normal. In July 1960, the Veteran was seen for a complaint of a swollen lymph node. In August 1966, the Veteran was seen for a complaint of skin furunculosis. The Veteran provided the same information in his December 1971 Retirement Examination that he provided in the October 1958 Discharge and Retirement Examination. At the December 2011 Travel Board hearing, the Veteran testified that after he was discharged from active service he was exposed to a great deal of sunshine as he worked in the trucking industry for about 25 years. See December 2011 hearing transcript, p. 10. When questioned by the undersigned VLJ about whether he sustained sunburn while in active service, the Veteran stated: "Probably. I-I don't remember specifically, though, but I probably did." Id. at p. 14. In April 2012, the Veteran was afforded a VA examination. The examiner indicated that the Veteran had received an impression of tumors and neoplasms of the skin. The examiner reviewed the entirety of the claims file, considered the Veteran's accounts of his medical history, and conducted a physical examination. The examiner opined that the claimed skin condition was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner wrote that there is no evidence to support the contention that claimed skin condition occurred in service. As to the issue of sun exposure, the examiner opined that it is less likely as not that the Veteran's sun exposure while on duty served as a causative agent in the development of the claimed skin condition. The examiner based his rationale for this opinion on the basis of consideration of the "sum total" of sun exposure. Here, the examiner noted that the Veteran reported that he was born and raised in California and spent 25 years in the trucking business; both of which would indicate significant sun exposure. Moreover, the Veteran's various military occupation specialties (MOSs) of tele-typist and cryptologist would be less likely to have exposed him to sun exposure-relatively speaking. The examiner added that the factors of birth place and civilian employment would militate in favor of providing the majority of the Veteran's sun exposure and thus a greater role in the development of the Veteran's skin disorder. In November 2012, the Veteran's representative submitted an Informal Hearing Presentation. In pertinent past, the representative wrote that the Veteran was adamant that his skin cancer was a result of his active service, emphasizing the duty time he spent in Vietnam and Texas. In August 2013, Dr. R., a private dermatologist, submitted a letter. She wrote that she had been treating the Veteran for over 22 years. During this course of treatment, according to her, the Veteran had developed multiple squamous cell carcinomas as well as basal cell carcinomas. Moreover, she noted that the Veteran's service occurred in several areas known for their "bright and sunny days." Moreover, she opined that prolonged ultraviolet (UV) radiation can lead to development of both squamous and basal cell carcinomas. She stated that she believed that the Veteran's service in multiple sun-filled locations significantly contributed to the development of the Veteran's skin cancers. Dr. R. provided no rationale as to the decades-long lag between the Veteran's retirement from active service and her over 22 years of treatment. The Board notes here that Dr. R.'s treatment records are also associated with the evidence of record. They reveal that the Veteran received on-going consultation, monitoring, and diagnostic skin testing. Dr. R. provided multiple impressions in these records, including that of actinic keratosis which she qualified as pre-cancerous lesions in August 2008. Later treatment records provide impressions of the cancers that she addresses in her August 2013 letter. In January 2014, the Veteran's representative submitted an internet web article entitled, "Agent Orange Exposed Vietnam Veterans Higher Skin Cancer Risk." This article was culled from a United Press International (UPI) "Health Notes" release. The article addresses findings of an assistant professor, as discussed below. In April 2015 medical report, Dr. B., a private physician, noted that a biopsy of skin from the Veteran's left forearm showed the presence of aggregates of atypical squamous cells in the dermis. He further opined that the nuclei of these cells were enlarged, hyperchromatic and pleomorphic. Dr. B. provided an assessment of excision left forearm squamous cell carcinoma. In May 2015, the Veteran submitted an April 2014 internet web article entitled, "Agent Orange Exposure Appears to Double Risk of Invasive Skin Cancer." This article includes a byline of "Department of Defense (DOD); Department of Veterans Affairs VA; Endocrinology; News; and Oncology." The article incorporates the findings of an assistant professor of plastic surgery at a university cancer center. The author notes that skin cancer is not presumptively associated with Agent Orange exposure. However, according to the author, the latest Institute of Medicine (IOM) update to the Veterans and Agent Orange Report concluded that there is inadequate and insufficient information to determine whether there is an association between exposure to Agent Orange and basal or squamous cell cancer. The author then discusses the findings of the assistant professor whose research results indicate a higher rate of association; the author also indicates that the assistant professor's research findings involved 100 men with lighter skin. In January 2016, the Veteran was afforded a VA opinion. The examiner reviewed the entirety of the claims file. The examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As a rationale for this finding, the examiner noted that the Veteran's STRs were silent for any skin cancer condition. Moreover, he noted that the first mention of skin cancer (specifically the removal of a cancerous growth from the Veteran's ear) appeared some 20 years after active service. And, the Veteran was evaluated privately for multiple skin tumors and cancers some 15 years thereinafter. As to his active service itself, the examiner noted that the Veteran's duties of tele-typist, cryptologist, and instructor did not place him at undue risk for sun exposure. And, on a numerical basis, the Veteran's activities proceeding and succeeding active service far outnumber his years in active service. These extra-service activities are ill-defined. Finally, given the length of time from the Veteran's retirement from active service and the first presentation of skin cancer, any causal relationship would be speculative at best. In May 2016, the Veteran was afforded a VA opinion which specifically focused on the herbicide exposure issue. This examiner evaluated the entirety of the claims file. Upon review of the evidence of record, the examiner opined that the Veteran's skin disorder (noted as dermatitis/eczema/skin cancer) is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner first opined that there is no basis in medical fact to support any alternative finding. Moreover, the Veteran's claimed skin condition/conditions, as noted above, are not presumptive for Agent Orange exposure. The examiner also took note of the Veteran's Retirement Examination, which provided no evidence of a skin condition. (As noted above, the Veteran himself indicated that his skin was normal.) Concerning Dr. R.'s August 2013 letter, the examiner opined that Dr. R. failed to recognize the Veteran's significant sun exposure before and after his separation from active service. In July 2016, the Veteran's attorney submitted a response to the May 2016 Supplemental Statement of the Case, via VA Form 21-4138. She wrote that neither the January nor the May 2016 VA opinions were adequate or complied with the JMR. In pertinent part, she based her contentions upon the examiners' reliance upon findings in the inadequate 2012 VA opinion. Moreover, she objected to the fact that the examiners stressed the Veteran's pre- and post-service sun exposure, and gave short shrift to his 22 and a half years of sun exposure in active service. She also objected to the examiner's opinion concerning Agent Orange. In concluding, she advanced that skin cancer can develop long after exposure to UV light exposure has occurred. In August 2016, Ms. C., a registered nurse employed by a legal nursing consulting firm, submitted a consultancy letter to the Veteran's attorney. In the letter, Ms. C. stated that she reviewed and analyzed the Veteran's file. She provided a lengthy description of different types of skin carcinomas. She offered her opinion as to the Veteran's skin disorder, noting that the first time the Veteran received treatment occurred in 1992 when a cancerous growth was excised. Further, she took note of the locales where the Veteran's active service took place. After a long disquisition of the evidence and epidemiological studies involving skin cancer, Ms. C. opined that the Veteran's basal cell and squamous cell carcinomas were at least as likely as not the result of his in-service sun exposure. Moreover, she opined that the Veteran's in-service Agent Orange exposure at least as likely as not contributed the Veterans basal cell and squamous cell carcinomas. In the latter opinion, she deferred to findings of the assistant professor, as mentioned above. Here, she noted that this study was limited to men with lighter skin types, like the Veteran. In the case of the former, Ms. C. underscored Dr. R.'s 20 plus years of treatment. She also referenced 10 internet web articles. Also in August 2016, the Veteran submitted an affidavit. In pertinent part, he stated that he never wore "sun protection" while in active service, and no sun protection was offered. Further, he noted that he usually worked with rolled-up shirtsleeves and wore a baseball cap during service as a cryptographer from 1952 to 1972 in locations including California, Colorado, Morocco, Texas, Taiwan, the Philippines, and Vietnam. During his one year in Morocco, he reported that he wore short pants and rolled-up shirtsleeves because of the heat. The Veteran also described his apparel and duties in the other locations noted above. Upon returning from Vietnam, according to the Veteran, his wife told him that his complexion had changed from fair to ruddy. The Veteran stated that he worked in the trucking industry for 25 years after active service, spending half his time outside. In August 2017, the Veteran was afforded a VA examination. The examiner reviewed the claims file, considered the Veteran's account of his medical history, and conducted a physical examination. This examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As a rationale for this opinion, the examiner first noted that the Veteran developed precancerous and skin cancer, to include basal cell carcinoma (BCC) and squamous cell carcinoma (SCC) "later in life." BCC and SCC, according to the examiner, are most likely due to cumulative due to cumulative sun exposure-as per current oncological research. The examiner mentioned that neither sunburn nor skin conditions are mentioned in the Veteran's STRs. This examiner repeated earlier examiners' points about the Veterans MOSs and the unlikelihood of these specialties creating excessive sun exposure. Furthermore, the examiner opined that there is insufficient evidence to support the contention that BCC and SCC are secondary; and, moreover, neither BCC nor SCC are on the presumptive list of conditions due to Agent Orange exposure. In December 2017, the Veteran's attorney submitted a response to the November 2017 Supplemental Statement of the Case. She advanced that neither of the two prior VA examiners provided an adequate opinion as to service connection on a direct basis. She further contended that a diagnosis of skin cancer upon discharge is not required for direct service connection. The question, so she argued, is whether the Veteran's condition resulted from "that" in-service exposure to Agent Orange. Referring to the articles that she and the Veteran submitted, as discussed above, she wrote that Vietnam Veterans are twice as likely to develop skin cancer as the general population. Therefore, according to her, Agent Orange exposure is likely a risk factor for skin cancer. She expanded upon the scope of her objections in a subsequent December 2017 letter, underscoring that the Veteran had spent much time exposed to the sun in active service. She also made references to Dr. R.'s findings, Ms. C.'s consultancy letter, and the Veteran's affidavit, as discussed above. In short, she averred that the RO had not adequately considered applicable law and favorable evidence and relied upon inadequate VA examinations and opinions. Analysis Upon review of the evidence, the Board concludes that entitlement to service connection for a skin disorder, to include as due to herbicide exposure is not warranted As an initial point, the Board notes that the Veteran is competent to report skin symptoms that are present and skin manifestations that are visible and the Board finds the Veteran's reports of experiencing such symptoms and manifestations to be credible. The Board finds that entitlement to service is not warranted based on the presumption regarding exposure to certain herbicide agents. As noted above, if chloracne or other acneform disease consistent with chloracne becomes manifest to a degree of 10 percent or more within one year after the last date on which the Veteran was exposed to certain herbicide agents during active service, presumptive service connection is warranted. The Board notes that the presumption is limited to chloracne and other acneform disease consistent with chloracne and does not encompass all skin disorders, such as basal cell carcinoma and squamous cell carcinoma. The evidence of record provides no indication that chloracne or other acneform disease consistent with chloracne manifested during active service or within one year after the last date on which the Veteran was exposed to certain herbicide agents during active service. The Board also notes that the Veteran himself has not contended this. Furthermore, the evidence of record does not indicate that the Veteran has been diagnosed at any time with chloracne or other acneform disease consistent with chloracne. There are not even nuanced suggestions in the extensive body of medical reports, examination reports, and medical opinions that the Veteran has been treated for chloracne or other acneform disease consistent with chloracne. While entitlement to service connection is not warranted based upon presumptive service connection, entitlement to service connection may still be established with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Although the Veteran had a corn, athlete's foot, and complaints of a swollen lymph node and skin furunculosis in service, it appears that these skin disorders were resolved by the time of the December 1971 Retirement Examination. The Veteran's primary contentions appear to be that his current skin disorder is related to in-service sun exposure and exposure to certain herbicide agents. As a lay witness, the Veteran is the Veteran is competent to report his medical history and symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469-79 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). Turning to the medical evidence of record, the Board may favor the opinion of one competent medical examiner over that of another as long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 7 Vet. App. 467 (1993). Greater weight may be placed on one practitioner's opinion over another depending on factors such as reasoning employed and whether or not and the extent to which they reviewed prior clinical records and evidence. See Gabrielson v. Brown, 7 Vet. App. 36 (1994). Furthermore, the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App, 140 (2003). The Board places some probative weight on Dr. R.'s August 2013 letter and Ms. C.'s August 2016 consultancy report. Nevertheless, in the case of the former the conclusions that Dr. R. reached provided no rationale as to the decades-long lag between the Veteran's retirement from active and her over 22 years of treatment. In the case of the latter, Ms. C.'s consultancy letter referenced an assistant professor's findings mentioned in an April 2014 internet web article; however, that article itself states that the latest Institute of Medicine (IOM) update to the Veterans and Agent Orange Report concluded that there is inadequate and insufficient information to determine whether there is an association between exposure to Agent Orange and basal or squamous cell cancer. In other words, Ms. C.'s opinion that the Veteran's in-service Agent Orange exposure at least as likely as not contributed to the Veteran's basal cell and squamous cell carcinomas, is fundamentally flawed in that it is based upon inconclusive scientific findings. Dr. R.'s and Ms. C.'s opinions pale when compared to the April 2012, January 2016, May 2016, and August 2017 VA examination reports and opinions when taken as a whole. As set forth above, the April 2012 VA examiner reviewed the claims file and conducted a physical examination of the Veteran. Based upon his findings, he opined that there is no evidence in the Veteran's STRs to support his contention that his skin disorder was incurred in service, noting that the "sum total" of sun exposure must be considered. The January 2016 VA examiner again took note of the absence of evidence in the Veteran's STRs, further noting that the first mention of skin cancer occurred 20 years after the Veteran's retirement form active service. Based upon these facts, this VA examiner opined that any causal relationship would be speculative at best. The May 2016 VA examiner again reviewed the claims file, opining that there is no basis in medical fact to attribute the Veteran's skin disorder to any in-service event, injury, or illness. This examiner also noted that Dr. R. failed to address the Veteran's significant sun exposure both before and after service. And, the August 2017 VA examiner reported that the Veteran developed precancerous and skin cancer, to include basal cell carcinoma and squamous cell carcinoma, "later in life." To this point, this examiner opined that current oncological research indicates that these cancers are cumulative, that is, they develop over time. As to exposure to certain herbicide agents, the latter three VA examiners noted that the Veteran's skin disorder was not a presumptive condition as laid out in 38 C.F.R. § 3.309(e) (2017). As a consequence, the VA examiners opined that the Veteran's skin disorder could not be evaluated within the context of causation. The Board notes here that these VA examiner's points are reflective of the fact that the latest Institute of Medicine (IOM) update to the Veterans and Agent Orange Report concluded that there is inadequate and insufficient information to determine whether there is an association between exposure to Agent Orange and basal or squamous cell cancer. This is to say that the evidence submitted by the Veteran supports these VA examiners' findings vis-à-vis the coincidence of Agent Orange exposure and likelihood of developing skin cancer, In summary, the Board finds that the Veteran's skin disorder is not related to active service, to include as due to herbicide exposure, and concludes that the Veteran's skin disorder was not incurred in or aggravated by active service. 38 U.S.C. § 1110 (2014); 38 C.F.R. § 3.303 (2017). The criteria for entitlement to service connection for a skin disorder have not been met and the Veteran's claim therefore must be denied. The preponderance of evidence is against the Veteran's claim and there is no doubt to be resolved. See 38 U.S.C. § 5.107(b) (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a skin disorder, to include as due to herbicide exposure, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs