Citation Nr: 1808993 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 07-17 315A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for melanoma. 2. Entitlement to service connection for residuals of dental trauma affecting all teeth other than #6, #7, #8, and #9, including as secondary to service-connected teeth. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to an initial compensable rating for renal insufficiency. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). WITNESSES AT HEARINGS ON APPEAL Veteran and his father ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from February 1985 to February 1988. These claims come before the Board of Veterans' Appeals (Board) on appeal of June 2006 and May 2011 rating and Decision Review Officer decisions, in which the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, in pertinent part, denied reopening claims for service connection for a right knee disability and dental trauma to tooth #8, denied service connection for melanoma, granted service connection for renal insufficiency, assigned that disability an initial 0 percent rating, from September 1, 2010, and denied a TDIU. In a March 2014 supplemental statement of the case, the RO granted service connection for tooth #8, for dental treatment purposes. In support of this appeal, in February 2007 and August 2007, the Veteran participated in informal conferences with Decision Review Officers. In October 2011 and June 2015, he testified, once with his father, at hearings held at the RO before another Decision Review Officer and the undersigned Veterans Law Judge. This appeal was previously before the Board in February 2016, at which time the Board reopened the claims for service connection for right knee, left knee, right ankle, and left ankle disabilities. The Board also granted service connection for left knee, right ankle, and left ankle disabilities as well as residuals of dental trauma affecting teeth #'s 6, 7, and 9. An increased rating for a lumbar spine disability was denied and an initial increased rating of 20 percent was granted for lumbar radiculopathy, right lower extremity. The remaining claims on appeal were remanded. The issues regarding increased ratings for insomnia disorder with chronic pain (claimed as depression and anxiety) and lumbar radiculopathy, left lower extremity, were remanded for the issuance of a statement of the case, pursuant to Manlicon v. West, 12 Vet. App. 238 (1999). A statement of the case was issued in December 2016. Subsequently, the Veteran gave testimony on these issues in an August 2017 Board hearing held by another Veterans Law Judge and thus these claims will be adjudicated in a separate decision. 38 C.F.R. § 20.707 (2017). When the Board remands a claim to the RO it has a duty to ensure substantial compliance with the directives contained in that remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). As for the Veteran's claimed melanoma, because the benefit is being granted, a Stegall discussion regarding VA compliance with the prior Board remand directives is unnecessary, as any lack of substantial compliance is non-prejudicial. However, as discussed below, the requested development was not substantially complied with regarding the remaining claims on appeal and therefore those claims must be remanded again. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for residuals of dental trauma affecting all teeth other than #6, #7, #8 and #9, including as secondary to service-connected teeth, and a right knee disability, a compensable rating for renal insufficiency, and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT Melanoma is causally or etiologically related to service. CONCLUSION OF LAW The criteria for service connection for melanoma have been met. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, with regard to the claim for service connection for melanoma, there is no need to discuss whether VA complied with the duties the VCAA requires. Rather, given the favorable disposition below, any lack of compliance is non-prejudicial or harmless, not affecting the essential fairness of this adjudication. 38 C.F.R. 20.1101 (2017). Service Connection Laws and Regulations Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The U.S. Court of Appeals for Veterans Claims (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 v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, melanoma is a chronic diseases under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a)(2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128 (2000). Analysis According to the June 2015 Board hearing transcript, the Veteran stated that his melanoma developed secondary to several sunburns he suffered during service, while working in the desert. He alleged that he received an Article 15 for one such sunburn as it was so bad, he could not work. The Veteran's personnel records were obtained and do not show receipt of an Article 15 for sunburn although the Veteran received an Article 15 for possession of alcohol by a minor. His Bar to Reenlistment certificate contains other indicators of untrainability or unsuitability which show no evidence of sunburn. Records reflect that the Veteran diagnosed with malignant melanoma in 2010 in the left shoulder. The November 2016 VA examiner also noted that the Veteran had a lymph node removed from the left axilla. Service treatment records are negative for any complaints, treatment, or diagnosis of melanoma. The Board acknowledges that the Veteran is competent to report his symptoms and observations, to include his reports as to sunburning. While the evidence does not support the Veteran's report of an Article 15, the Board finds the Veteran's report of sun exposure are credible. There is no evidence of melanoma within one year of service separation. The Veteran was afforded a VA examination in November 2016. The examiner noted that the Veteran's electronic folder in VBMS was reviewed. He opined that the Veterans diagnosis of melanoma is at least as likely as not (50 percent or greater probability) incurred in or caused by sun exposure during service. He noted that the Veteran was diagnosed with melanoma left shoulder in 2010 at the Chillicothe VA and referred to the Cincinnati VA where it was removed through a wide local excision. He added that according to American Cancer Society: "Ultraviolet (UV) rays are clearly a major cause of melanoma. UV rays can damage the DNA in skin cells. Sometimes this damage affects certain genes that control how skin cells grow and divide. If these genes no longer work properly, the affected cells may become cancer cells". The same examiner provided an addendum in December 2016. In regards to Veteran's history of service, including where and for how long he served in sunny locations, and pre-service, in-service and post-service sun exposure, the examiner noted that the Veteran stated that prior to his entry to service he would spend most of his time inside his house and referred working mostly indoors doing different jobs post service. He also noted the Veteran's contentions that he suffered sunburn during service while working and training in the desert. However, the examiner further observed that military personnel records do not support the Veteran's assertion. After further review, the examiner opined that the Veteran's left shoulder melanoma is less likely as not (50 percent or greater probability) incurred in or caused by sun exposure during service. His rationale noted that there is no evidence of sun exposure in his service treatment records or sunburn resulting in Article 15 and that post service treatment records are silent for a diagnosis, chronic progression and treatment of sunburn injury or condition. It was further noted that post service treatment records are silent for a diagnosis, chronic progression and treatment of melanoma until 2010 when he was diagnosed and treated for this condition. The examiner added that according to Mayo Clinic: "UV light doesn't cause all melanomas, especially those that occur in places on your body that don't receive exposure to sunlight. This indicates that other factors may contribute to your risk of melanoma." He further stated that it would be resorting to mere speculation to establish a relationship between the Veteran's current condition and his complaints in service due to the lack of treatment records from the time of separation from service until now. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Each medical opinion cited above contained some rationale and should be given some weight, with the respective health care professionals' qualifications being a threshold consideration. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations include whether the person opining is suitably qualified and sufficiently informed). Here, the cause of the Veteran's melanoma may never be known with certainty because there are positive and negative opinions on the nexus issue. While the Veteran's service records do not support his assertion regarding sunburn in service, he is competent to report sun exposure. On the facts of this particular case, the Boards finds the evidence is at least in equipoise as to whether or not the Veteran's melanoma is etiologically related to service. Thus, the Board finds that the proper remedy is to grant the appeal and service connection for melanoma is warranted. ORDER Service connection for melanoma is granted. REMAND Renal insufficiency The Veteran's renal insufficiency is currently rated under Diagnostic Code 7535 as toxic nephropathy. Under 38 C.F.R. § 4.115a, diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. Only the predominant area of dysfunction shall be considered for rating purposes. In this regard, a voiding dysfunction is rated as urine leakage, urine frequency, or obstructed voiding. 38 C.F.R. § 4.115a. VA examiners in January 2017 both noted that the Veteran did not have renal dysfunction. The Board notes that an April 2011 VA treatment record shows findings of mild edema of the knee. Additionally, according to the January 2017 VA examination report, the Veteran reported urinary frequency at night and during the day. However, it is unclear whether the edema noted in 2011 and/or the urinary frequency noted in 2017 are related to the Veteran's diagnosed renal insufficiency. Thus an addendum opinion is warranted in this regard. Dental trauma Regarding the Veteran's dental complaints the Veteran claims that the dental treatment he initially received as a result of the trauma is deteriorating, affecting all of his teeth and requiring further treatment. He seeks service connection for all damaged teeth on either a direct basis, as due to the original trauma, or on a secondary basis, as due to the service-connected teeth and the deterioration of the original treatment. While prior Board remand requested an opinion addressing both direct and secondary theories of service connection, the requested opinion was not provided. Of note, the examiner noted that in addition to the injury to teeth #'s 6, 7, 8, and 9, Tooth # 10 was prepared to accommodate replacement of teeth #'s 8 and 9; the examiner noted that any other dental deterioration to other teeth would require speculation as to their condition at the time of initial injury and that there is nothing to suggest other teeth were damaged during the initial trauma. However, the examiner failed to fully identify which additional teeth are now damaged and whether such damage was caused or aggravated by the Veteran's service-connected teeth and associated deteriorating treatment. Thus, an addendum opinion consistent with the requested opinions from the Board remand is required. Right knee disability In addition, as noted in the previous Board remand, the Veteran claims that the physical demands of service caused him to develop a right knee disability. The Novemebr 2016 VA examiner noted that the Veteran's right knee disability is less likely as not incurred in or caused by in-service trauma. In a December 2016 addendum, the examiner opined that the Veteran's rigth knee scar less likely as not preexisted service and worsened therein, however observed that the Veteran sustained an open injury after falling down on a broken piece of glass for which stitches were taken and removed prior to service. However, the examiner failed to answer whether the right knee disability or scar is caused or aggravated by a service-connected disability. Thus the Board finds that the opinions currently of record regarding the etiology of the Veteran's right knee disability are inadequate for rating purposes and remand is necessary to obtain a more complete opinion. TDIU As any decision with respect to the claims for service connection and increased rating may affect the claim for a TDIU, that claim is inextricably intertwined with the claim on appeal; as such, adjudication of the TDIU claim is deferred until adjudication of the remaining claims on appeal. VA treatment records VA treatment records dated through January 2017 are of record. While the Veteran's claims are in remand status, the AOJ must obtain all outstanding VA medical records. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Associate with the record all updated VA treatment records dated since January 2017. 2. Then, refer the entire record to October 2016 VA dental examiner for the purpose of identifying all damaged teeth affected by in-service dental trauma or related to the Veteran's service-connected teeth (#6, #7, #8 and #9). If the examiner is no longer available, the claims file should be provided to an examiner qualified to render the requested opinion. A new examination is not necessary unless deemed so by the examiner. The examiner must indicate in the examination report that the claims file was reviewed. Record in detail the Veteran's in-service and post-service history of dental trauma, tooth problems and dental procedures and identify all teeth other than #6, #7, #8 and #9, which are damaged. The examiner is asked to opine as to: a. Whether any damage to teeth other than #6, #7, #8 and #9, is secondary to the in-service dental trauma documented in the service treatment records. b. If not, determined whether any damage to teeth other than #6, #7, #8 and #9, is caused or aggravated by service-connected residuals of dental trauma affecting teeth #'s 6, 7, 8 and 9. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Refer the entire record to the examiner who conducted the November 2016 VA Knee and Lower Leg examination. If the examiner is no longer available, the claims file should be provided to an examiner qualified to render the requested opinion. A new examination is not necessary unless deemed so by the examiner. The examiner must indicate in the examination report that the claims file was reviewed. Acknowledging service treatment records showing a right knee scar on entrance into the service, a 1993 reported history of right knee reconstruction, the absence of evidence of an in-service right knee injury, the Veteran's reports of lay-observable right knee symptoms, and post-service treatment records mentioning motorcycle and automobile accidents and right knee surgery, offer opinions as to: a. Whether any current right knee disability is at least as likely as not (50% or greater probability) related to service, including the physical demands of such service and training, during which he reportedly had to fall to his knees on the rocky desert floor. b. If not, offer an opinion as to whether any current right knee disability is caused or aggravated by service-connected disability(ies). If the examining physician opines that the Veteran's right knee disability was aggravated (permanently worsened in severity) by any service connected disability(ies), the examiner should attempt to identify the baseline level of severity of the right knee before the onset of aggravation. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Refer the entire record to the examiner who conducted the January 2017 VA Kidney examination. If the examiner is no longer available, the claims file should be provided to an examiner qualified to render the requested opinion. A new examination is not necessary unless deemed so by the examiner. The examiner must indicate in the examination report that the claims file was reviewed. The examiner is asked to determine whether the Veteran's reported urinary frequency in January 2017 and/or edema noted in April 2011 in conjunction with his knee evaluation are symptoms of his diagnosed renal insufficiency. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. Ensure that the VA examination reports comply with the instructions noted above and, if any does not, return it to the examiner for correction. 6. Readjudicate all properly perfected claims based on all of the evidence of record. Consider the claims for service connection for a right knee disability and residuals of dental trauma affecting all teeth other than #6, #7, #8 and #9 on both direct and secondary bases. Also consider whether the Veteran's renal insufficiency or symptoms are better addressed under a different diagnostic code. If any benefit sought on appeal remains denied, provide the Veteran a supplemental statement of the case and an appropriate time period to respond before returning this case to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs