Citation Nr: 1807414 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 13-12 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for basal cell carcinoma. 2. Entitlement to service connection for squamous cell carcinoma. REPRESENTATION The Veteran represented by: The American Legion ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to April 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland Ohio, which denied service connection for squamous cell carcinoma, a claim to reopen the service connection claim for basal cell carcinoma, and continued a 50 percent disability rating for post-traumatic stress disorder (PTSD). In January 2013, the RO increased the 50 percent rating evaluation for the Veteran's service-connected PTSD to 100 percent disabling, effective July 19, 2010. Since this is a grant of the full benefits sought for the increased rating claim for PTSD, this issue is no longer before the Board on appeal. FINDINGS OF FACT 1. Since the last, final July 2006 rating decision, the evidence submitted to reopen the claim for service connection for basal cell carcinoma is new, but not material evidence. 2. The preponderance of the evidence is against a finding that the Veteran's squamous cell carcinoma is not etiologically related to service, including exposure to Agent Orange and other toxins in Vietnam and in Camp Lejeune. CONCLUSIONS OF LAW 1. Evidence received since the final July 2006 rating decision is not new and material evidence and the criteria for reopening the claim for service connection for basal cell carcinoma are not established. 38 U.S.C. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. The criteria for service connection for squamous cell carcinoma are not established. 38 U.S.C. §§ 1110, 1116, 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New & Material Evidence to Reopen a Claim for Basal Cell Carcinoma VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2017); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156(a). That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last, final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 510 - 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran's service connection claim for basal cell carcinoma was initially denied in a June 2005 rating decision because the RO found that service medical records were silent for any treatment or diagnosis of basal cell carcinoma, and that despite evidence of treatment for basal cell carcinoma several years after service discharge, available scientific and medical evidence did not support the conclusion that basal cell carcinoma is associated with herbicide exposure. Subsequently, in a July 2006 rating decision, the RO continued the previous denial of service connection for basal cell carcinoma because it found that there was no evidence that the Veteran's condition began in service or was a condition associated with Agent Orange. After this rating decision, the Veteran did not perfect an appeal of this decision within one year; therefore, the July 2006 rating decision became final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In this case, the only evidence submitted since the July 2006 rating decision is treatment records from December 29, 1999 to February 21, 2017. Although this evidence is "new" because it had not been previously submitted and considered by VA, the evidence is not material because it is not evidence of treatment for any related illness from his service period, nor is it scientific or medical evidence that raises the possibility of substantiating his claim that his basal cell carcinoma was a result of his exposure to Agent Orange or is otherwise directly attributable to service. Rather, the evidence submitted since the last, final July 2006 rating decision, at best, is cumulative evidence of his current diagnosis. Therefore, new and material evidence has not been submitted, and the service connection claim for basal cell carcinoma remains closed. Service Connection for Squamous Cell Carcinoma Generally, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (2017). 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 or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2017). Additionally, a veteran is presumed exposed to herbicide agents, including Agent Orange, if he or she had active military, naval, or air service in the Republic of Vietnam from January 9, 1962 to May 7, 1975, "unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2017). If a veteran was exposed to Agent Orange during active service, service connection is presumed for the following disorders: AL amyloidosis; Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease, Ischemic Heart Disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina; All chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); Multiple myeloma; Non-Hodgkin's lymphoma; Parkinson's disease; Early-onset peripheral neuropathy; Porphyria cutanea tarda; Prostate cancer; Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2017). The Agent Orange Act of 1991 requires that when the VA Secretary determines that a presumption of service connection based on herbicide exposure is not warranted for health outcomes, he must publish a notice of that determination, including an explanation of the scientific basis for the decision. The Secretary's determination must be based on consideration of reports of the National Academy of Sciences ("NAS") and all other sound medical and scientific information and analysis available to the Secretary. 38 U.S.C. § 1116(b) and (c). In this regard, the Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Further, VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for skin cancers, such as squamous cell carcinoma and basal cell carcinoma. See 75 Fed. Reg. 81332 (Dec. 27, 2010 ); 79 Fed. Reg. 20308 (Apr. 11, 2014). Additionally, a veteran who served more than 30 days (consecutive or non-consecutive) at Camp Lejeune between August 1, 1953, and December 31, 1987, is presumed to have been exposed to contaminants in the water supply, absent affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(7)(iii) (2017). Contaminants of the Camp Lejeune water supply include trichloroethylene (TCE), perchloroethylene (PCE), benzene, and other volatile organic compounds. 38 C.F.R. § 3.307 (a)(7)(i). Effective March 14, 2017, VA amended its adjudication regulations relating to presumptive service connection, identifying eight diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. See 82 Federal Register 4173 (January 13, 2017). This final rule amends 38 C.F.R. §§ 3.307 and 3.309, and establishes presumptive service connection for Veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) during this period, and who have diagnoses of any of the following eight diseases: adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease. Notably, squamous cell carcinoma is not among the eight listed diseases warranting presumptive service connection. The Veteran's service treatment and personnel records indicate that he served in Vietnam from December 1967 to August 1969, as well as in Camp Lejeune around October 1969. See Military Personnel Records; see also October 1969 Record of Medical Care (indicating that the Veteran was diagnosed with urethritis at BAS 2nd Battalion, 6th Marines, 2nd Marine Division, FMF, Camp Lejeune, North Carolina). Although his post-service treatment records reflect a diagnosis of squamous cell carcinoma of the left forearm, see e.g. January 2006 Dermatology Surgery Note, this condition is not listed as one of the enumerated presumptive diseases that VA has associated with exposure to herbicide agents in Vietnam or with exposure to contaminants in Camp Lejeune, as noted above. Therefore, presumptive service connection for squamous cell carcinoma is not warranted. Furthermore, the Veteran asserts that he is entitled to a remand on this issue because VA did not comply with its duty to assist by not providing the Veteran with a medical opinion and additionally, it failed to consider service connection on the theory of direct service connection. See November 2017 Appellate Brief. The Board acknowledges that notwithstanding the fact that the requirements of a presumptive regulation are not met, this does not in and of itself preclude a claimant from establishing service connection on the basis of direct causation. Specifically, service connection can be alternatively established on a direct basis by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions of 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). See Combee v. Brown, 34 F.3d 1039, 1043 - 44 (Fed. Cir. 1994). This requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 U.S.C. § 1110 and 38 C.F.R. § 3.303; See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Post-service treatment records reflect that the Veteran has a diagnosis of squamous cell carcinoma. see e.g. January 2006 Dermatology Surgery Note. However, service treatment records are silent for complaints and/or treatment for any illnesses or diseases that may be associated with squamous cell carcinoma. Furthermore, there is no other competent evidence, such as, for example, lay testimony from the Veteran or fellow service-members who served with the Veteran in Vietnam, to indicate that the Veteran incurred an injury or illness that may possibly provide a link to the Veteran's current diagnosis of squamous cell carcinoma. The Board acknowledges that the Veteran was not scheduled for a VA examination to determine whether his squamous cell carcinoma may be related to active service. Pursuant to 38 C.F.R. § 3.159(c)(4) (2017), VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. Although VA's duty to assist entails providing a VA examination to ascertain the presence and/or etiology of a current diagnosis, such VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Nonetheless, even though there is competent medical evidence of a current disability, the record does not contain competent evidence indicating that squamous cell carcinoma may be related to an in-service injury, event or illness; or to herbicide exposure, including Agent Orange, and/or other toxins in Vietnam and Camp Lejeune, as noted above. Therefore, even under the low threshold of McLendon, a VA examination is not required. The Board has also considered the Veteran's assertion that the Veteran's squamous cell carcinoma is etiologically related to his in-service exposure to Agent Orange and toxins in Vietnam and Camp Lejeune. Specifically, the Veteran cites online articles from the websites of the National Center for Biotechnology information and the Agency for Toxic Substances and Disease registry to assert that the third element establishing service connection is met because "dioxins, found in Agent Orange, are known carcinogen related to squamous cell cancers, giving an indication that the carcinomas are related to the Veteran's active service." See November 2017 Appellate Brief. However, as stated above, squamous cell carcinoma is not a disease that VA has associated with exposure to herbicide agents in Vietnam or with exposure to contaminants in Camp Lejeune. Moreover, the Board affords no probative value to the Veteran's assertion because the Veteran, a lay person, is not competent to provide a medical opinion on the etiology of a complex disability, such as squamous cell carcinoma. Although a lay persons is competent to report symptoms that he experiences, such as hearing loss or pain in the knee, a lay person is not competent to provide a medical opinion on that which would require specialized knowledge or training, such as a complex disability like squamous cell carcinoma. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, the Veteran has not shown, nor asserted, that he has the medical expertise and/or specialized training, or is otherwise qualified to provide a medical opinion on the etiology of his squamous cell carcinoma. Furthermore, the Veteran has not presented as evidence, any competent medical opinion from a physician or a medical professional, who is qualified with the requisite specialized training and/or medical expertise, to support any finding that his squamous cell carcinoma is etiologically related to an in-service exposure to herbicides, including Agent Orange; and/or toxins in the Republic of Vietnam and Camp Lejeune. Therefore, the preponderance of the evidence weighs against this claim, and it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER New and material evidence has not been submitted and the claim to reopen the service connection claim for basal cell carcinoma is denied. Entitlement to service connection for squamous cell carcinoma is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs