Citation Nr: 18148940 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 09-00 925 DATE: November 8, 2018 ORDER Entitlement to service connection for a neck disability is denied. Entitlement to service connection for basal cell skin cancer as a result of exposure to herbicides is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s neck disability did not occur in service, nor is it caused or aggravated by the Veteran’s service-connected back disability. 2. The Veteran’s basal cell skin cancer was diagnosed many years after service and is not related to an injury or event in service, including exposure to herbicides. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a neck disability have not been met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection for basal cell skin cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1116 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marine Corps on active duty from October 1968 to October 1971. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In addition, disabilities diagnosed after discharge may also be service connected if all the evidence, including pertinent service records, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (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 a disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). VA is to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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. 38 C.F.R. § 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In adjudicating claims for VA benefits, the burden of proof only requires an approximate balance of the evidence for and against a claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). 1. Entitlement to service connection for a neck disability. The Veteran contends that he injured his neck when he fell off a climbing rope in service. He also states, his neck injury may have been caused or aggravated by his service-connected back disability. The Veteran has a current diagnosis of cervical spondylosis, and therefore meets the first element of service connection. Moving forward to the second element, the Veteran’s service treatment records (STRs), to include his entrance and separation examinations, are silent for any complaints, treatment or diagnosis regarding a neck injury. However, the Veteran states he injured his neck and back during a fall in service. The Veteran is competent and credible to report a fall that resulted in pain or injury to his neck during active service. Additionally, the Veteran is service connected for a back disability, which he contends could have also caused or aggravated his neck condition. The Veteran has met the second element of service connection. The question remaining is whether the Veteran’s in-service neck injury resulted in his currently diagnosed neck disability and/or whether the Veteran’s service-connected back condition caused or aggravated his currently diagnosed neck disability. The Veteran’s post-service medical records first showed complaints of neck pain in 1992, more than twenty years after separation from service. The Veteran complained that he injured his neck during his duties as a police officer. At that time, he was treated with chiropractic manipulation and diagnosed with cervical paraspinous tenderness and cervicoscapular syndrome secondary to an on the job injury. A December 1993 X-ray of the cervical spine shows multilevel spondylosis with degenerative disc derangement at C-5 – C-6 and C-6 – C-7 and possibly of C-4 – C-5. As a result of his on-the-job neck injury, the Veteran received a twenty-five percent disability rating from his employer. The Veteran’s spine was examined in March 2016 and at that time he was diagnosed with cervical spondylosis. In September 2017, VA provided a medical opinion to determine the nature and origin of the Veteran’s neck disability. The VA examiner opined the Veteran’s neck disability is not at least as likely as not related to his active service. The examiner reasoned the Veteran’s STRs were silent for any complaints, treatment or diagnosis regarding a neck disability and that separation examinations dated June and October 1971 indicate no neck issues or related abnormal PE findings to support a chronic or ongoing neck/cervical spine condition. Additionally, the examiner pointed out that the Veteran complained of a significant injury to his neck in 1993 when he was on duty as a police officer. The examiner also stated: “Acute cervical strain, such as reported by [the] Veteran from failing off a wall, results from trauma causing stretching or tearing of muscles, tendons, ligaments or fascia, but not the vertebrae or discs, and therefore, is unlikely to be the cause of spondylosis, which more than likely related to degenerative changes of aging and ongoing repetitive injuries, including the [1992 on the job] cervical spine injury.” See September 2017 VA Medical Opinion. The VA examiner also opined that it is not at least as likely as not the Veteran’s neck disability was caused by, related to or aggravated by his service-connected back disability. The examiner reasoned the changes in the cervical spine films from the December 1993 imaging and lack of surgery or interventional procedures on the cervical spine or discs would not support that the Veteran’s current neck disability has been aggravated beyond its normal progression, including by his service-connected back condition. Id. The examiner noted consideration of the lay statements of the Veteran, his spouse and others, as well, review of the entire claims file. The Board finds the 2017 VA medical opinion to be probative as to the etiology of his neck disability. The examiner was fully informed of the pertinent medical history of the case, provided a fully articulated opinion, and the opinion was supported by a reasoned analysis. Therefore, the Board assigns a high probative value to the medical opinion of September 2017. See Nieves-Rodriguez, 22 Vet. App. 295, 303-04 (2008). In addition, there is no evidence of a chronicity in symptoms reflecting a neck disability until the Veteran’s employment injury in 1993, therefore not warranting service connection under 38 C.F.R. § 3.303(b). Although the Veteran contends that his neck disability is a result of his active service and/or caused or aggravated by his service-connected back disability, he is not competent to make this conclusion. While lay persons are competent to provide opinions on some medical issues, the issue of whether a cervical spine condition is related to service or secondary to a service-connected disability, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As such, the Board affords significantly more weight to the medical evidence than to the Veteran’s lay assertions. Even considering the lay statements by the Veteran with regard to the matters they are competent to address, the most probative evidence weighs against the claim of entitlement to service connection for a neck condition. In summary, the evidence of record indicates that the Veteran’s current neck disability was not shown in service or for many years thereafter, and is not related to service, or caused or aggravated by his service-connected back condition. Accordingly, service connection for a neck injury, to include as secondary to his service-connected back condition, is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence of record is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to service connection for basal cell skin cancer as a result of exposure to herbicides The Veteran contends that his basal cell skin cancer is a result of his exposure to herbicide agents while serving in the Republic of Vietnam. VA regulations provide for a presumption of service connection for certain disabilities associated with herbicide-agent exposure. 38 C.F.R. §§ 3.307, 3.309. The Veteran has verified service in Vietnam and his exposure to herbicide agents is presumed. 38 U.S.C. §§ 1116(f), 1154; 38 C.F.R. § 3.309(e); Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. VA has not determined that a positive association exists between exposure to herbicide agents and a subsequent diagnosis of squamous cell or basal cell carcinoma of the skin. 38 C.F.R. § 3.309. In the absence of credible scientific and medical evidence establishing a nexus between exposure to herbicide agents and a subsequent diagnosis of skin cancer, service connection on a presumptive basis due to exposure to herbicide agents must be denied. In Combee v. Brown, the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). The Veteran was diagnosed in 2015 with basal cell carcinoma. As noted above, the Veteran’s presence in Vietnam is conceded. The only question remaining is whether the Veteran’s current basal cell carcinoma is the result of his active service. The Veteran’s service treatment records (STRs), to include his enlistment and separation examination, are silent for any complaints, treatment or diagnosis for skin cancer. The Veteran’s diagnosis for skin cancer comes almost five decades after his separation from service. The Veteran was examined by VA in September 2017, and the VA examiner opined that it is not at least as likely as not that the Veteran’s basal cell carcinoma is related to or caused by his active service, to include herbicide exposure. The examiner noted several reasons for the opinion. The examiner first notes the Veteran’s STRs are silent for any complaints, treatment or diagnosis for skin cancer. The examiner also notes the most likely cause of the Veteran’s skin cancer is UV exposure, with the “overwhelming exposure occurring before and after the three-year military service.” See September 2017 VA Medical Opinion. The examiner notes that basal cell carcinoma is a non-melanocytic skin cancer that arises from epidermal basal cells. The examiner stated the majority of these cancers occur on areas of skin that are regularly exposed to sunlight or other ultraviolet radiation. “The DNA of certain genes is often damaged from by exposure to sunlight or UV radiation, although genetics may play a factor in the development of the disease.” Id. The examiner also concludes, “Agent Orange herbicide exposure is not associated with causing basal cell carcinoma of the skin.” Id. The Board finds the September 2017 VA medical opinion on to be probative as to the etiology of his skin cancer. The examiner was fully informed of the pertinent medical history of the case, provided a fully articulated opinion, and the opinion was supported by a reasoned analysis. Therefore, the Board assigns a high probative value to the skin cancer medical opinion of September 2017. See Nieves-Rodriguez, 22 Vet. App. 295, 303-04 (2008). Although the Veteran contends that his skin cancer is a result of his active service to include his exposure to herbicides, he is not competent to make this conclusion. While lay persons are competent to provide opinions on some medical issues, the issue of whether a skin cancer condition is related to service or herbicide exposure, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As such, the Board affords significantly more weight to the medical evidence than to the Veteran’s lay assertions. Even considering the lay statements by the Veteran with regard to the matters they are competent to address, the most probative evidence weighs against the claim of entitlement to service connection for basal cell skin cancer. The Veteran has not submitted any competent evidence relating basal cell carcinoma of the skin to herbicide exposure during service. There is also no evidence of the Veteran having skin cancer within a year of separation from active duty to allow for service connection on a presumptive basis as a chronic disease. 38 C.F.R. § 3.307, 3.309. The first objective evidence of the Veteran having skin cancer dates from June 2015, over forty years after service, when VA medical records shows a diagnosis of basal cell carcinoma. The evidence of record does not show that the claimed skin cancer was incurred in or caused by military service, to include as a result of herbicide exposure. As such, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Therefore, service connection for basal cell carcinoma claimed as skin cancer is denied. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran’s service-connected disabilities were considered regarding a claim for TDIU by a VA examiner in March 2016. The VA examiner opined that it is more than likely the Veteran’s CAD, right elbow and lumbar condition alone and in aggregate would affect heavy duty, but not light or sedentary gainful employment. However, the VA examiner failed to consider the Veteran’s bilateral hearing and tinnitus conditions in his opinion. As a result, a remand is needed to obtain a medical opinion which considers all of the Veteran’s service-connected disabilities in regard to whether he able to secure and follow substantially gainful employment. The matters are REMANDED for the following action: 1. Obtain any all up to date relevant VA medical treatment records and associate them with the Veteran’s claims file. 2. Ask the Veteran to provide IRS tax returns from 2009 to 2017 and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from 2009 through 2017 and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. Obtain a VA medical opinion to determine whether the functional effects of the Veteran’s service-connected disabilities, alone or acting in concert, preclude him from securing and following substantially gainful employment, consistent with his education and occupational expertise. This opinion must be provided without consideration of his nonservice-connected disabilities or age. If an opinion cannot be provided without an examination, one should be provided. The examiner shall include a discussion of ALL the Veteran’s service-connected disabilities. A rationale shall be provided for all opinions offered. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel