Citation Nr: 18146969 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 14-33 798 DATE: November 2, 2018 ORDER Entitlement to service connection for residuals of skin cancer, best characterized as squamous cell carcinoma of the right ear and basal cell carcinoma of the neck, is granted. REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a prostate disability, to include residuals of prostate cancer, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, residuals of skin cancer, best characterized as squamous cell carcinoma of the right ear and basal cell carcinoma of the neck, is at least as likely as not related to in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for residuals of skin cancer, best characterized as squamous cell carcinoma of the right ear and basal cell carcinoma of the neck, are met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1984 to June 2004, to include service in the Southwest Asia theater of operations during the Persian Gulf War. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2011 (skin cancer other than of the back) and September 2013 (left ankle, left hip, and prostate disability) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Although the Agency of Original Jurisdiction (AOJ) considered the subsequent September 2013 rating decision, which in part, denied service connection for skin cancer of the right ear, neck and arm, as the rating decision on appeal as to this issue, the Board finds the October 2011 rating decision is the correct rating decision on appeal. Within the one-year period following notification of the October 2011 rating decision, on March 13, 2012 VA received notification of disagreement from the Veteran as to the denial of a March 2012 rating decision which confirmed and continued the prior October 2011 denial of service connection for skin cancer. Construing the March 2012 notice of disagreement liberally, the Board finds that it must be considered a notice of disagreement with respect to the October 2011 rating decision denial of service connection for skin cancer. Following issuance of a statement of the case in July 2014, a substantive appeal was timely received within 60 days thereafter. As such, October 2011 rating decision is the rating decision on appeal as to this issue. Additionally, with respect to the Veteran’s claims for service connection for left ankle disability and for left hip disability, the provisions of 38 C.F.R. § 3.156 (c) (2017) apply to the facts as to these claims. While the Veteran did not perfect an appeal following a November 2005 statement of the case with respect to an August 2004 rating decision which, in part, denied service connection for a left ankle disability and for a left hip disability, nor did he appeal a May 2006 rating decision which again denied service connection for a left hip disability, and no new and material evidence was received within the one-year appeal periods following the August 2004 and May 2006 rating decisions, relevant service treatment records were received subsequent to those determinations. Specifically, in September 2013, the Veteran, in part, submitted service treatment records, which included a February 2004 Report of Medical History, conducted at separation from service, not previously of record, and which documented left ankle and left hip problems, and which arguably supports the Veteran’s contention of an in-service injuries. Thus, the provisions of 38 C.F.R. § 3.156 (c) are applicable in this case. In June 2018, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Finally, additional evidence in the form of an August 2018 hearing loss and tinnitus disability benefits questionnaire, developed by VA, was associated with the claims file subsequent to the most recent, July 2014 statement of the case issued for the appeal herein. The Veteran did not waive review of this evidence. However, this evidence is not relevant to the claims herein. Therefore, it is not necessary to remand these claims to the Agency of Original Jurisdiction (AOJ) for consideration of the evidence in the first instance. See 38 C.F.R. § 20.1304 (c) (2017). 1. Entitlement to service connection for residuals of skin cancer, wherever located (other than already service-connected of the back), to include of the ear, neck, arm and face The Veteran asserts that he has skin cancer, and residuals thereof, that are related to his active service. Specifically, in June 2018 testimony he described, in part, that in the spring of 2004, he was diagnosed with skin cancer of his neck resulting in a scar. He testified that in 2006, he had skin cancer of his ear, and had a portion of his ear chopped off and reconstructive surgery. Further, in June 2018 testimony, he described that he was stationed in the desert for eight months and sunscreen was not accessible. In this regard, the Veteran’s service records reflect, in part, service in the Southwest Asia theater of operations during the Persian Gulf War, specifically from August 1990 to April 1991. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). To establish service connection on a direct incurrence basis, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board concludes that the Veteran has a current diagnosis of skin cancer, other than already service-connected of the back, specifically of the neck and right ear, that is related to in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). (Service connection for basal cell carcinoma of the skin of the back was granted in a June 2012 rating decision.) Consistent with the Veteran’s June 2018 testimony, a June 2004 service treatment record described a shave biopsy of the lower right lateral neck and provided a final diagnosis of basal cell carcinoma pigmented extending to the base of biopsy. Similarly, a November 2009 shave biopsy of the right anterior tragus endorsed a final diagnosis of squamous cell carcinoma well differentiated cystic inflamed traumatized with scale crust extending broadly to the deep tissue edge. Additionally, a June 2006 medical record documented a shave biopsy of the right arm with preoperative diagnoses of basal cell carcinoma, squamous cell carcinoma, folliculitis, prurigo nodule, excoriation and a post-operative diagnosis of the same. However, the June 2006 medical record endorsed a final diagnosis as to the right dorsal forearm, specifically features suggestive of actinic keratosis excoriated. Further, the June 2006 medical record also provided an addendum which further described that sections showed solar elastosis with mild epidermal keratinocytic atypia and that much of the lesion was traumatized with central ulceration and serous crust formation and that the overall features suggested a traumatized/excoriated actinic keratosis. Notably, the addendum explicitly found there was no evidence of carcinoma. In this regard, as skin cancer has a distinct factual basis from other types of skin disabilities, the Board will not consider other diagnoses of record, such as actinic keratosis, in this decision and there is no other evidence of record documenting skin cancer of the Veteran’s right arm. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). Thereafter, an April 2012 VA examiner endorsed diagnoses of basal cell carcinoma, later characterized more specifically as of the back, and squamous cell carcinoma of the skin of the face, which was later characterized more specifically as of the right ear. The April 2012 VA examiner specifically discussed the Veteran’s report of skin cancer of the neck, and also noted, in part, he underwent excision of a squamous cell carcinoma of the skin of the right external ear in December 2009 and that he had also been followed for actinic keratoses noted in 2010. Thus, the Board finds the Veteran has current skin cancer disability, best characterized as squamous cell carcinoma of the right ear and basal cell carcinoma of the neck. The April 2012 VA examiner provided, in part, a negative nexus opinion as to the Veteran’s skin cancer of the right ear, with a rationale that explained it was not appropriate to lump all skin cancers into one process as the cell type of origin and nature of a basal cell carcinoma was very different from a squamous cell carcinoma, just as a melanoma was very different from both squamous cell carcinoma and basal cell carcinomas. The April 2012 examiner found that the Veteran’s squamous cell carcinoma of the right external ear was a new primary lesion that was separate both in terms of location and cellular origin of the neoplasm as compared to the basal cell carcinoma of the skin of the back, and as such, the squamous cell carcinoma of the skin of the face was less likely than not due to or a result of nor permanently aggravated by the basal cell carcinoma of the back as well as any other documented in-service illness, injury, treatment or events. However, April 2012 examiner did not address the Veteran’s reported prolonged sun exposure as a potential etiological cause. In this regard, the Veteran submitted a November 2011 medical letter from a dermatology resident, P. L., which stated, in part, that it was well established that nonmelanoma skin cancers were caused by chronic cumulative sun exposure and the Veteran’s time spent in the military as an airborne field medic and instructor caused him significant sun exposure at a time when sunscreens were not readily available to troops, and that his service plausibly contributed to his eventual development of skin cancers and his risk for developing more with time. P. L. further stated it was her professional opinion that the Veteran’s military service likely contributed to his development of skin cancer. In weighing the evidence, Board finds the November 2011 medical letter from P. L, is more probative than the April 2012 examiner’s opinion, which did not address the role of the any prolonged sun exposure. Accordingly, when reasonable doubt is resolved in the Veteran’s favor, the Board finds that service connection is warranted for skin cancer other than already service-connected of the back, best characterized as squamous cell carcinoma of the right ear and basal cell carcinoma of the neck. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017), Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a left hip disability is remanded. As the Board has determined the provisions of 38 C.F.R. § 3.156 (c) are applicable in this claim, as discussed above, the AOJ must readjudicate the claim on the merits with consideration in the first instance of the service treatment records received in September 2013, which included a February 2004 Report of Medical History, conducted at separation from service, not previously of record, and which documented left ankle and left hip problems. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Further, while the Board recognizes an April 2004 examination report did not endorse a diagnosis as to a left hip disability, in June 2018, the Veteran, in essence, testified he still experiences residuals of a 1992 left hip fracture. Thus, the Board finds another examination is warranted. Entitlement to service connection for a left ankle disability is remanded. As the Board has determined the provisions of 38 C.F.R. § 3.156 (c) are applicable in this claim as discussed above, the AOJ must readjudicate claim on the merits with consideration in the first instance of the service treatment records received in September 2013, which included a February 2004 Report of Medical History, conducted at separation from service, not previously of record, and which documented left ankle and left hip problems. Id. Further, while the Board recognizes an April 2004 examination report did not endorse a diagnosis as to a left ankle disability, in June 2018, the Veteran testified he was diagnosed with arthritis of the left ankle. Thus, the Board finds another examination is warranted. 2. Entitlement to service connection for a prostate disability, to include prostate cancer, is remanded. In June 2018 testimony, the Veteran linked his prostate disability to erectile dysfunction and elevated prostate-specific antigen (PSA) in 2004, as well as to in-service chemical exposure during the Gulf War. Although a July 2013 prostate cancer disability benefits questionnaire diagnosed status post prostate cancer post brachytherapy and benign prostate hypertrophy with prostate cancer, no nexus opinion was provided. Thus, the Board finds another examination is warranted. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination(s) to determine the nature and etiology of any left hip disability, and/or left ankle that may be present, or was present during or proximate to the claims. The VA examiner(s) should opine as to: (a.) Whether it is at least as likely as not (50 percent or greater probability) that any identified left hip disability, demonstrated during or proximate to the appeal period, was present in active service, was caused by active service, or is otherwise related to active service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any identified left ankle disability, demonstrated during or proximate to the appeal period, was present in active service, was caused by active service, or is otherwise related to active service. Rationale must be provided for the opinions proffered. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any prostate disability that may be present, or was present during or proximate to the claim. The VA examiner should opine as to: Whether it is at least as likely as not (50 percent or greater probability) that any identified prostate disability, demonstrated during or proximate to the appeal period, was present in active service, was caused by active service, or is otherwise related to active service. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must consider the Veteran’s contentions, as in June 2018 testimony, that his prostate disability is linked to erectile dysfunction and elevated PSA in 2004, as well as to in-service chemical exposure in the Southwest Asia theater of operations during the Persian Gulf War. 4. After undertaking any other development deemed appropriate, readjudicate the issues on appeal, to include with consideration of service treatment records received in September 2013, which included a February 2004 Report of Medical History, conducted at separation from service, not previously of record, and which documented left ankle and left hip problems. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case, and afford the Veteran and his representative the appropriate period to respond before the record is returned to the Board for further review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel