Citation Nr: 18149154 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 14-34 259A DATE: November 8, 2018 ORDER Service connection for skin neoplasms, to include squamous cell carcinomas, basal cell carcinomas, actinic keratosis, and inflamed seborrheic keratoses of the skin, is granted. Service connection for left ear hearing loss disability is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise that currently diagnosed skin neoplasms, to include squamous cell carcinomas, basal cell carcinomas, actinic keratosis, and inflamed seborrheic keratoses of the skin, are etiologically related to exposure to herbicide agents during service. 2. The Veteran does not have a left ear hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for skin neoplasms, to include squamous cell carcinomas, basal cell carcinomas, actinic keratosis, and inflamed seborrheic keratoses of the skin, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a left ear hearing loss disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to August 1968 in the United States Marine Corp. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, this matter was previously before the Board in March 2017. The Board reopened the previously denied claim for entitlement to service connection for skin neoplasms and remanded the claim, along with the claim for service connection for bilateral hearing loss, for further development. Subsequently, during the pendency of the appeal, the RO awarded service connection for the right ear hearing loss and tinnitus in a May 2014 rating decision. Thus, the issues of service connection for right ear hearing loss and tinnitus are no longer before the Board as the award of service connection was a grant of the full benefit sought on appeal. The claims for service connection for skin neoplasms and left ear hearing loss have been returned to the Board for further consideration. In August 2015, the Veteran testified before a Veterans Law Judge (VLJ) via videoconference hearing. A copy of the hearing transcript is of record and has been reviewed. In January 2018, the Veteran was informed that the VLJ that conducted his hearing was no longer employed at the Board and informed him of his option to have an additional hearing. The Veteran declined an additional Board hearing in February 2018 correspondence.   Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Pertinent Service Connection Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. §3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is currently diagnosed with recurrent skin cancer (basal cell carcinoma and squamous cell carcinoma), which is considered a “malignant tumor” and is listed as such as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, claimed sensorineural hearing loss is also considered a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as malignant tumors, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 C.F.R. §§ 3.307, 3.309(a). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on herbicide agent exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Squamous cell and basal cell cancers are not listed as diseases that may be presumptively service connected due to herbicide agent exposure. However, even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide agent exposure, VA must also consider the claim on a direct basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When all the evidence is assembled, VA 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. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Service connection for skin neoplasms, to include squamous cell carcinomas, basal cell carcinomas, actinic keratosis, and inflamed seborrheic keratoses of the skin, is granted. The Veteran contends that his skin neoplasms were proximately caused or aggravated by his presumed exposure to herbicide agents and/or due to sun exposure during service in Vietnam. See August 2015 Hearing. As noted above, the Veteran has a current diagnosis of recurrent skin neoplasms, diagnosed as squamous cell carcinomas, basal cell carcinomas, actinic keratosis, and inflamed seborrheic keratoses of the skin. The Veteran was first diagnosed with these conditions in 1984 and they have reoccurred frequently since that time. See May 2017 VA examination. The Veteran’s examination at enlistment reported a clinically normal skin examination. Additionally, the Veteran’s service treatment records are silent as to any skin abnormality during service. However, the Veteran is presumed to have been exposed to herbicide agents in service based on his service in the Republic of Vietnam during the Vietnam era. Further, he credibly testified at the August 2015 Board hearing that his face, neck, and hands were excessively exposed to the sun in Vietnam, while the rest of his body was covered by his clothing. The Veteran submitted an August 2014 letter from Dr. L.P., an osteopathic physician, in September 2015. Dr. L.P. concluded that, although there had not been sufficient studies linking the Veteran’s specific skin cancers to herbicide agent exposure, it was possible that the Veteran’s exposure increased the likelihood of developing skin cancers, especially considering the frequency and severity of his skin cancer. The Veteran testified at a hearing before the Board in August 2015. The Veteran asserted that he was first diagnosed with skin cancer in November 1985, but that he had skin conditions several years before being diagnosed. He testified he had lesions for a long time before seeking medical treatment in 1984. Further, the Veteran contended that, while in Vietnam, the only areas of his body that were exposed to the sun were his face, neck, and hands. Indeed, the Veteran reported that those are the areas of his body he has experienced the majority of his lesions and skin cancers. He also reported that his doctors told him that the skin cancers are slow growing, so they likely had onset several years before they were able to be seen on the surface of his skin. The Veteran testified that his post-service employment was with the United States Post Office as a mail clerk and then as a firefighter. At the post office, he estimated that he worked indoors approximately 60 percent of the time, except in the summer when he worked outside more frequently due to being short staffed. He also reported that when he worked outside delivering mail, he drove a mail truck approximately 50 percent of the time, which gave him some protection from the sun. In October 2015, the Veteran also submitted an August 2015 letter from Dr. S.G., a physician with the Skin and Laser Center of Pennsylvania. Dr. S.G. noted that he has been treating the Veteran for many years, and the Veteran had numerous skin cancers over that time. Further, Dr. S.G. noted that the Veteran was exposed to chemicals while overseas during service, and concluded it was “entirely possible that many of his skin cancers were caused in significant part by his exposure to these chemicals.” Dr. S.G. also provided a substantially similar letter dated in December 2017. The Veteran was afforded a VA compensation examination in May 2017. The examiner, a physician, diagnosed the Veteran with recurrent squamous cell and basal cell carcinomas, actinic keratosis, and asymptomatic vitiligo. The Veteran reported that, in 1984, he was diagnosed with basosquamous carcinoma and since that time, he had developed multiple subsequent lesions on his face. He also reported that his vitiligo flared on exposure to the sun. The examiner indicated the Veteran had malignant neoplasms, which had been treated with excision, multiple Mohs surgeries, and antineoplastic chemotherapy. The examiner noted the Veteran had multiple ongoing skin lesions at any given time, and by the time the skin lesions were treated, new lesions requiring further treatment appeared. The Veteran’s cancer was considered active. The VA examiner concluded that it was less likely than not that the Veteran’s skin conditions are related to service because there is no documentation of skin lesions during service, and he did not have any of the diseases presumptively connected to herbicide agent exposure. The Veteran then submitted a private December 2017 disability benefit questionnaire (DBQ), which was completed by Dr. L.P. Dr. L.P. noted the Veteran was diagnosed with herpes zoster, squamous cell and basal cell skin cancers, actinic keratoses, and inflamed seborrheic keratoses. Dr. L.P. noted the skin cancers (non-melanomas) and multiple precancers were due to excessive sun exposure and sun damage throughout the Veteran’s life time, and noted the Veteran had both benign and malignant neoplasms. Dr. L.P. reported the Veteran was likely to develop additional precancers and skin cancers throughout his lifetime. In addition, the Veteran submitted a December 2017 letter from Dr. L.P. who concluded it was probable that the Veteran’s exposure to herbicide agents increased the likelihood, frequency, and severity of the Veteran’s skin cancers. After a review of the evidence, both lay and medical, the Board finds the evidence is at the very least in equipoise that the Veteran’s currently diagnosed skin disabilities, to include squamous cell carcinomas, basal cell carcinomas, actinic keratosis, and inflamed seborrheic keratoses of the skin, are related to his presumed exposure to herbicide agents during service. First, the May 2017 VA medical opinion is inadequate because it was impermissibly based solely on the lack of symptoms, diagnoses, and treatment of a skin neoplasms in the Veteran’s service treatment records. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The VA opinion did not address the Veteran’s competent reports that his physicians have noted that skin cancers have delayed onset, and as such, would not show up for many years after service. Therefore, the opinion is inadequate and is assigned no probative value. Next, the Board considered the Veteran’s statements attributing his skin cancers to herbicide agent exposure and excessive sun exposure during service. However, the Board finds that the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the current skin disabilities, to include squamous cell carcinomas, basal cell carcinomas, actinic keratosis, and inflamed seborrheic keratoses of the skin. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this case, the Veteran is not competent to render an opinion as to the cause or etiology of any skin pre-cancer or cancer because doing so requires medical knowledge or training about the onset and progression of the unseen aspects of the cancer process, in addition to any observable symptoms of such a disorder. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Board finds his statements neither weigh in favor nor against the claim. The remaining evidence of record include several positive etiology opinions from the Veteran’s treating physicians. First, the Board recognizes that the Court has not fully embraced a “treating physician rule” under which a treating physician’s opinion would presumptively be given greater weight than that of any other examiner. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. 467, 471-73. Regardless, the length of a medical professional’s opportunities to examine a claimant may be considered in assigning probative weight. Guerrieri, 4 Vet. App. at 471-73. Dr. L.P. and Dr. S.G. have reportedly been treating the Veteran since the mid-1990s, which is over 23 years. They are familiar with the Veteran’s medical history, familiar with the Veteran, and have considered his contentions. They have provided multiple medical opinions, to varying degrees of probabilities, that link the Veteran’s skin neoplasms to exposure to herbicide agents during service. Thus, the Board finds these opinions probative and assign them higher weight in favor of the claim. In the absence of evidence to the contrary and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for skin disabilities, to include the squamous cell and basal cell carcinomas and actinic keratosis of the skin, have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection has been granted on a direct basis for the skin neoplasms, there is no need to discuss entitlement to service connection on any other basis. See 38 U.S.C. § 7104 (2012). 2. Entitlement to service connection for left ear hearing loss is denied. The Veteran contends that he has left ear hearing loss that is related to his active service. Of note, the RO has awarded service connection based on acoustic trauma sustained during service for both right ear hearing loss disability and tinnitus. The threshold element for a service connection claim, a current disability, as defined by VA, must be met. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Upon review of all the evidence of record, the Board finds that the Veteran does not have a hearing loss disability in the left ear for VA compensation purposes. The Veteran was afforded a VA compensation examination in May 2014. The examiner, an audiologist, diagnosed the Veteran with left ear sensorineural hearing loss. However, the Veteran’s pure tone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 15, 15, 20, 25, and 35 respectively. Speech discrimination was 96 percent in the left ear. Thus, the Veteran did not meet the minimum threshold criteria for a left ear hearing loss disability for VA purposes under 38 C.F.R. § 3.385. The Veteran testified before the Board in August 2015. The Veteran’s left ear hearing loss was measured at 35 decibels at the May 2014 VA examination and had not yet met the criteria for a diagnosis of left ear hearing loss for VA purposes. The Veteran testified his hearing loss had worsened and that he had to turn up the television louder than he should and yelled when he was on the phone. Subsequently, the Veteran was afforded another a VA audiological examination in May 2017. The examiner, an audiologist, diagnosed the Veteran with left ear mixed hearing loss and the Veteran’s left ear pure tone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 20, 15, 20, 35, and 35 respectively. Speech discrimination was 98 percent in the left ear. Thus, the Veteran still did not meet the criteria for a left ear hearing disability under 38 U.S.C. § 3.385. Finally, the Veteran submitted a June 2017 audiogram and a summary of his examination by a private audiologist. The Veteran’s left ear pure tone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 20, 20, 25, 35, and 35 respectively. Here, threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is not 40 decibels or greater; and the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are not 26 decibels or greater. Moreover, the Board recognizes that speech discrimination was 84 percent in the left ear; however, the audiologist used a CID W-22 Word list for speech discrimination testing, which is not valid to diagnose a current hearing loss disability for VA purposes under 38 C.F.R. § 3.385. Rather, only Maryland CNC Word list may be used. Thus, the private audiogram does not meet the criteria for establishing hearing loss disability in the Veteran’s left ear. The remaining evidence of record, to include post-service treatment records, do not demonstrate left ear hearing loss disability as required by 38 C.F.R. § 3.385. Because the evidence does not show that the Veteran’s left ear hearing loss is to a disabling degree according to 38 C.F.R. § 3.385, the weight of the evidence demonstrates that the Veteran’s left ear hearing loss has not met the threshold to establish current left ear hearing loss “disability,” and the claim must be denied. The Court has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer, 3 Vet. App. 225; see also Rabideau, 2 Vet. App. 143-44. The Veteran contends that the May 2017 VA examination produced invalid audiometric data because the examiner had trouble “with the hook up of the hearing machine.” See December 2017 letter. A presumption of regularity is applied to all manner of VA processes and procedures. Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008). Clear evidence is required to rebut the presumption of regularity. Miley, 366 F.3d at 1347. It appears that the May 2017 VA audiometric testing was conducted in the normal course of the audiologist’s duties. The pure tone results in the May 2017 VA examination were consistent with the other VA examination findings of record and the June 2017 private audiogram results. The Veteran’s assertions that the May 2017 audiometric data are invalid does not constitute clear evidence to rebut the presumption of regularity in this case. In addition, the Board acknowledges that there are multiple positive nexus opinions that relate the Veteran’s reduced left ear hearing acuity to service. See December 2017 letter. However, because the Veteran’s left ear hearing loss does not meet the minimum threshold for a current diagnosis of a current disability under 38 C.F.R. § 3.385, service connection is not warranted and must be denied. Because the preponderance of the evidence is against the claim for service connection for left ear hearing loss disability, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S.B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Harper, Associate Counsel