Citation Nr: 1814031 Decision Date: 03/07/18 Archive Date: 03/14/18 DOCKET NO. 12-26 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE 1. Entitlement to service connection for skin cancer. 2. Entitlement to service connection for infertility. REPRESENTATION Appellant represented by: John P. Dorrity, Accredited Agent WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to December 1971, and from September 1981 to March 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2014. The Veteran's infertility is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The competent medical and other evidence of record reflects it is at least as likely as not the Veteran developed skin cancer as a result of his active service. CONCLUSION OF LAW The criteria for a grant of service connection for skin cancer are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks service connection for skin cancer on the basis that the disability is related to herbicide exposure and/or sun exposure in service. The Board also notes that service treatment records from the Veteran's 1981 to 1984 period of active duty are unavailable. In such situations VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (Wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board also notes that the Veteran had active service in the Republic of Vietnam during his 1970 to 1971 period of active duty, and he is presumed to have been exposed to herbicide agents at that time. See 38 U.S.C.A. § 1116. Agent Orange is generally considered an herbicide agent and will be so considered in this decision. The provisions of 38 C.F.R. §§ 3.307, 3.309(e) provide that service connection may be established for certain designated diseases based upon such exposure even though there is no record of such disease during service. However, skin cancer is not among the conditions presumptively associated with such exposure. Nevertheless, Courts have held this does not preclude the Veteran from establishing service connection secondary to herbicide exposure with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Veteran asserts that his skin cancer is due to extensive heat and sun exposure while on active duty in the Republic of Vietnam. He is competent to describe such exposure, and the Board finds his testimony on this matter to be credible. The available service treatment records dated in March and April 1970 reflect treatment for blisters around the Veteran's lips, and it appears the condition may have been due to sun exposure. He was also treated for a skin rash with itching in April 1970. However, the Veteran's skin was evaluated as normal on his December 1971 separation examination, and he indicated on a concurrent Report of Medical History that he had not had skin diseases. Further, the first competent medical evidence of skin cancer in the record appears to be years after service. Thus, it appears competent medical evidence is required to resolve this claim. Here, the Board notes that there is competent medical evidence which both supports and refutes the Veteran's contentions regarding his skin cancer. Specifically, there is a September 2016 private medical opinion to the effect the Veteran's skin cancer is etiologically linked to his account of in-service sun exposure, and a September 2017 VA medical examiner's opinion against such a finding. The Board notes that both clinicians appear to have been familiar with the Veteran's contentions and medical history in this case; and nothing in the record questions their qualifications to provide competent medical evidence. As such, it appears the competent medical evidence is in equipoise on this matter. In view of the foregoing, the Board finds the competent medical and other evidence of record reflects it is at least as likely as not the Veteran developed skin cancer as a result of his active service. Therefore, service connection is warranted. ORDER Service connection for skin cancer is granted. REMAND The August 2017 VA examiner opined that because infertility was identified years after leaving service it is only pure speculation that the Veteran's in-service experience was the underlying cause. The examiner offered no further rationale in support of this assessment. This is especially significant because, as the Board noted in the January 2015 remand, the Veteran he reported undergoing testing for infertility at the Patterson Army Hospital and the Walter Reed Medical Center in the early 1980's during his latter period of active service, and was told at that time that his sperm count was zero. The Veteran has asserted that his infertility onset in service or is otherwise related to service. As such, the opinion is not adequate for rating purposes and this issue must be remanded for further development. Accordingly, the case is REMANDED for the following action: 1. After associating any outstanding records, obtain a medical opinion addressing whether the Veteran's infertility is related to or had its onset in service, or was caused or aggravated by a service-connected disability. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his infertility during and/or since service. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Then, readjudicate the appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and allow for an appropriate period of time for response before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs