Citation Nr: 21000860 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-10 778 DATE: January 6, 2021 ORDER New and material evidence has not been received to reopen a claim of service connection for residual facial scar with numbness secondary to skin cancer of the right temple. The claim to reopen is denied. New and material evidence has not been received to reopen a claim of service connection for asthma. The claim to reopen is denied. REMANDED Entitlement to service connection for choroidal melanoma, left eye, to include as due to exposure to environmental hazards in the Gulf War is remanded. FINDINGS OF FACT 1. An August 2009 rating decision denied service connection for skin cancer of the right temple and asthma. 2. Evidence added to the record since the August 2009 rating decision does not contribute to a more complete picture of the Veteran’s claim of service connection for residual facial scar with numbness secondary to skin cancer of the right temple. 3. Evidence added to the record since the August 2009 rating decision does not contribute to a more complete picture of the Veteran’s claim of service connection for asthma. CONCLUSIONS OF LAW 1. The August 2009 rating decision that denied service connection for asthma and skin cancer of the right temple is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has not been received since the August 2009 rating decision to reopen the claim of service connection for skin cancer of the right temple. 38 U.S.C. §§ 5107; 5018; 38 C.F.R. § 3.156. 3. New and material evidence has not been received since the August 2009 rating decision to reopen the claim of service connection for asthma. 38 U.S.C. §§ 5107; 5018; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 2004 until April 2005 and from May 2006 until August 2006. In November 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Claims to Reopen The Veteran seeks to reopen her claims of service connection for a residual facial scar with numbness secondary to skin cancer of the right temple and asthma. Skin Cancer, Right Temple The Veteran claimed service connection for skin cancer of the right temple in January 2009. That claim was denied in an August 2009 rating decision because there was no evidence a nexus to service. The Veteran did not disagree with that decision and new and material evidence was not received within one year of that decision. Therefore, that rating decision became final. While the Veteran’s 2009 claim was for skin cancer and the current claim is for a facial scar as a residual of skin cancer, the Board finds that the newly claimed condition was considered within the scope of the prior final denial and that the new claim does not have a medical etiology or underpinning facts that are separate and distinct from that of the previous claim. Therefore, the Board finds that the current claim is one to reopen the previously denied claim for skin cancer. See Velez v. Shinseki, 23 Vet. App. 199 (2009). The question before the Board is whether new and material evidence has been submitted to reopen the claim. Evidence of record at the time of the August 2009 rating decision included the Veteran’s incomplete service treatment records (STRs), VA treatment records, and a negative July 2009 VA medical opinion. That examiner noted that during service the Veteran developed three spots on skin (left arm, left cheek and right temple).The examiner characterized the in-service diagnosis as pigmented nevus. The Veteran underwent Mohs surgery for basal cell carcinoma (BCC) of the right temple in April 2009. The examiner concluded that “it is less likely that” the diagnosis of BCC in 2009 is related to her in-service treatment for pigmented nevus during service because there was mention of the lesion in the location of the right temple in 2004. Evidence received since the August 2009 rating decision includes updated VA treatment records, copies of the Veteran’s STRs, and the Veteran’s testimony at the hearing held in November 2019. The Veteran’s STRs received since August 2009 are not new as they were considered for the August 2009 rating decision. The Veteran’s testimony at the hearing held in November 2019 that the spot on the right temple was identified in service and arose during service is also not new evidence as it was considered by the examiner prior to the August 2009 denial. While the updated VA treatment records are new, they are not material because they do not relate to an unestablished fact or raise a possibility of substantiating the claim. No additional evidence of nexus has been provided. To the extent the Veteran testified that her skin cancer and choroidal melanoma may be linked, she is not competent to provide a medical opinion here as it goes beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The presumption of credibility does not apply where a fact asserted is beyond a person’s competency. Jones v. West, 12 Vet. App. 383 (1999). As new and material evidence has not been received, the claim is not reopened, and the Veteran’s appeal to this extent is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). Asthma The Veteran’s initial claim of service connection for asthma was denied in an August 2009 rating decision because there was no evidence that the Veteran’s pre-existing asthma had worsened beyond its natural progress in service. The Veteran did not appeal that rating decision or submit new and material evidence within one year of the decision, and the decision became final. The question before the Board is whether new and material evidence has been submitted to reopen the claim. Evidence of record at the time of the August 2009 rating decision included the Veteran’s incomplete STRs, VA treatment records, and July 2009 and August 2009 VA examinations and medical opinions for asthma. The VA medical opinions noted the Veteran’s report of symptom progression during service, but did not include any opinion as to whether the pre-existing disability was permanently worsened. Since the August 2009 rating decision, updated VA treatment records, copies of STRs, and the Veteran’s testimony from the November 2019 hearing have been added to the record. Copies of the Veteran’s STRs added to the record since August 2009 are not new as they were considered in the August 2009 rating decision. Additionally, the Veteran’s testimony at the November 2019 Board hearing is also not new as the information contained in the Veteran’s testimony is duplicative of evidence considered in prior to the August 2009 rating decision. While the Veteran’s updated VA treatment records are new, they are not material as they do not relate to an unestablished fact or raise a possibility of substantiating the claim. No evidence of worsening of the condition beyond its natural progress in service has been provided. To the extent the Veteran testified that her asthma was permanently worsened by her service, the Veteran is not competent to provide a medical opinion on worsening of the condition, as contrasted with symptoms, because it goes beyond a simple and immediately observable cause-and-effect relationship. See Kahana, 24 Vet. App. at 428; Jandreau, 492 F.3d at 1372. The presumption of credibility does not apply where a fact asserted is beyond a person’s competency. Jones, 12 Vet. App. at 383. As new and material evidence has not been received, the claim is not reopened, and the Veteran’s appeal to this extent is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, 24 Vet. App. at 110. REASONS FOR REMAND Entitlement to service connection for choroidal melanoma, left eye, to include as due to exposure to environmental hazards in the Gulf War is remanded. The Board cannot make a fully informed decision on the claim because the obtained VA medical opinion is inadequate. The Veteran contends that her left eye choroidal melanoma is etiologically related to service to include exposure to environmental hazards while deployed to Kuwait during the Gulf War. The Agency of Original Jurisdiction (AOJ) obtained a VA medical examination and opinion in October 2016 to determine the etiology of the Veteran’s left eye choroidal melanoma. The examiner offered a negative nexus opinion and stated that the allergic conjunctivitis and isolated ocular irritation experienced by the Veteran in service were “self-limiting conditions and not established risk factors for ocular melanoma.” However, the Veteran has since submitted news articles that suggest a link between certain cancers, including choroidal melanoma, and environmental toxins and hazards present at Camp Spearhead in Kuwait. The Veteran’s sworn testimony is that she was stationed at Camp Spearhead in Kuwait where she worked “12 to 14 hours every day with no days off for, I mean, three to four months.” The October 2016 medical opinion does not appear to consider this link, and is, therefore inadequate. The October 2016 VA opinion is also inadequate because examiner listed several known risk factors for ocular melanoma, including UV exposure, but did not state which risk factors applied to this Veteran. The Veteran’s sworn testimony at the November 2019 hearing is that she was checked frequently for skin cancer because “[she and others] were in the sun constantly.” On remand, an opinion that considers the Veteran’s UV exposure must be obtained. The most recent VA treatment records contained in the file are dated February 2017, but the Veteran had indicated that she continues to receive treatment at VA medical facilities. On remand, updated medical records should be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2017 to the present. 2. After completion of the above, schedule the Veteran for an examination by an appropriate VA examiner to determine the nature, extent, and etiology of any left eye condition to include choroidal melanoma. Copies of all pertinent records should be made available to the examiner. After review of the relevant medical evidence, examination of the Veteran, and any additional testing or studies, the examiner is asked to answer the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s eye condition(s) is causally related to the her military service, to include conceded environmental hazard exposure during the Gulf War? The examiner must complete the entire examination report. In answering this question, the examiner should consider, and discuss as necessary, (i) the online news articles submitted by the Veteran (from the Oregonian and Huffington Post) contained in the Veteran’s e-folder and; (ii) the Veteran’s UV exposure in active service and how that possible risk factor may apply here. All provided opinions must be supported by complete rationale. If the examiner determines that an opinion cannot be made without resort to speculation, the examiner should say why. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Collins, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.