Citation Nr: 21068285 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 14-18 496 DATE: November 9, 2021 ORDER Entitlement to service connection for soft tissue sarcoma is denied. REMANDED Entitlement to service connection for cirrhosis of the liver, to include as secondary to posttraumatic stress disorder (PTSD) and/or exposure to herbicide agents, is remanded. Entitlement to service connection for skin cancer, to include as secondary to PTSD and/or exposure to herbicide agents, is remanded. Entitlement to service connection for neuropathy of the bilateral lower extremities, to include as secondary to PTSD and/or exposure to herbicide agents, is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to PTSD and/or exposure to asbestos, is remanded. FINDING OF FACT The medical evidence of record does not show that the Veteran was diagnosed or treated for soft tissue sarcoma at any time during his lifetime. CONCLUSION OF LAW The criteria for entitlement to service connection for soft tissue sarcoma have not been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1965 to May 1967. The Veteran died during the pendency of the appeal in March 2021. The appellant is the Veteran's surviving spouse and is recognized as substitute claimant. These matters are before the Board of Veterans' Appeals (Board) on appeal from June 2012 and March 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Board dismissed the issues on appeal for lack of jurisdiction due to the death of the Veteran. However, in September 2021, the Veteran's surviving spouse was granted substitution to continue the Veteran's appeal. The appeal has now returned to the Board for further appellate consideration. Duties to Notify and Assist With respect to the claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The appellant has not advanced any procedural arguments in relation to VA's duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for soft tissue sarcoma The Veteran filed a service connection claim for soft tissue sarcoma, which he contended was caused by exposure to herbicide agents during service in Thailand. In May 2020 correspondence, the Veteran argued that he underwent surgery in 2010 to remove a soft tissue sarcoma. The Board has carefully reviewed the Veteran's service treatment records and post-service private and VA treatment records. The Board can find no evidence that the Veteran was diagnosed with soft tissue sarcoma at any time during his lifetime. However, medical records clearly document that the Veteran was diagnosed with squamous cell carcinoma on the nose, which was surgically removed, in August 2010. See August 2010 Carilion Clinic treatment notes. The 2010 diagnosis of squamous cell carcinoma was further confirmed by the dermatologist who treated him, Dr. M.P., in an August 2013 letter. The Board notes that squamous cell carcinoma, or skin cancer, is not a type of soft tissue sarcoma. See 38 C.F.R. § 3.309(e). Moreover, the appellant is currently pursuing a separate service connection claim for skin cancer (discussed in the REMAND section below); therefore, that claim will not be further considered here. The existence of a current disability is the cornerstone of a claim for VA disability compensation; consequently, failure to establish a current disability results in the denial of a claim. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Specifically, a claimant must have a disability in order to be considered for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the medical evidence of record reflects that the Veteran was not diagnosed with soft tissue sarcoma at any time during the pendency of this appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The only evidence in support of this claim is a May 2020 lay statement in which the Veteran argued he had surgery to remove a soft tissue sarcoma. However, as noted above, this lay statement is not supported by the objective medical evidence of record. Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of current disability there can be no valid claim for service connection. See Brammer, 3 Vet. App. at 225. Thus, in the absence of competent evidence showing a diagnosis of soft tissue sarcoma, it is unnecessary to address the remaining elements of the claim for service connection. See id. Likewise, the Board need not consider the Veteran's contention that was exposed to herbicide agents during service in Thailand. Finally, the Board notes that cancer is not the type of disability that is capable of lay observation or diagnosis and there is no indication that the Veteran or the appellant have the requisite medical knowledge needed to render an opinion on complex matters involving medical diagnoses. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, any opinion by the Veteran or appellant regarding the nature or pathology of soft tissue sarcoma or squamous cell carcinoma is not competent evidence. Significantly, the appellant has not provided any other competent or credible evidence of the existence of a diagnosis of soft tissue sarcoma during the Veteran's lifetime. Accordingly, the Board finds that a preponderance of the evidence weighs against the appellant's claim for service connection for soft tissue sarcoma. Because the competent medical evidence fails to establish that the Veteran was ever diagnosed with soft tissue sarcoma, the claim does not satisfy the criteria for service connection. Therefore, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Unfortunately, the claims remaining on appeal must be remanded because the RO did not substantially comply with the Board's prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand). 1. Entitlement to service connection for cirrhosis of the liver, to include as secondary to PTSD and/or exposure to herbicide agents, is remanded. 2. Entitlement to service connection for skin cancer, to include as secondary to PTSD and/or exposure to herbicide agents, is remanded. 3. Entitlement to service connection for neuropathy of the bilateral lower extremities, to include as secondary to PTSD and/or exposure to herbicide agents, is remanded. 4. Entitlement to service connection for COPD, to include as secondary to PTSD and/or exposure to asbestos, is remanded. Before his death, the Veteran contended that his cirrhosis of the liver (claimed as liver cancer), skin cancer, neuropathy of the lower extremities, and COPD were caused or aggravated by his PTSD. Specifically, he argued that he began smoking cigarettes and drinking alcohol to cope with his symptoms of PTSD, which, in turn, caused him to develop the claimed diseases. Alternatively, the Veteran also contended that he was exposed to herbicide agents and asbestos during service in Thailand due to his military occupational specialty (MOS) of aircraft instrument repairman, and that these exposures may have caused his claimed disabilities. The Board previously remanded the claim for cirrhosis of the liver in February 2018 and the claims for skin cancer, neuropathy, and COPD in November 2019, finding that they were inextricably intertwined with a pending service connection claim for PTSD. Thereafter, in an April 2020 rating decision, the Veteran was granted service connection for PTSD. As an initial matter, with regard to the claims for skin cancer, neuropathy, and COPD, the Board notes that the RO did not readjudicate the claims in light of the grant of service connection for PTSD or issue a supplemental statement of the case (SSOC) as required by 38 C.F.R. §§ 19.31, 19.37. In fact, the record indicates that the RO is still developing these claims, as it requested medical opinions from a VA examiner as recently as November 2021. As such, it appears these claims were prematurely returned to the Board; thus, they must be remanded to allow the RO to complete development and issue a SSOC. 38 C.F.R. § 19.31; Stegall, 11 Vet. App. at 271. The Board reminds the RO that it must ensure any medical opinions obtained for the above disabilities fully consider the theories of entitlement and lay contentions put forth by the Veteran and the appellant (as outlined in the remand directives below), and contain adequate medical rationale to support the conclusion reached. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). In addition, on remand, the RO should undertake appropriate efforts to attempt to verify the Veteran's claimed in-service exposure to asbestos pursuant to the evidentiary development guidelines outlined in VA's Adjudication Procedures Manual. See M21-1, Part IV, Subpart ii, Chapter 1, Section I, Topic 3(c). Finally, with regard to the claim for cirrhosis of the liver, in its February 2018 remand, the Board directed the RO to obtain a VA medical opinion to address the Veteran's contentions that his liver disability was caused or aggravated by PTSD. A VA medical opinion was obtained in January 2020. Although the VA examiner determined that the Veteran's cirrhosis was caused by alcohol abuse, the opinion did not address whether alcohol abuse was a result of the Veteran's PTSD, or otherwise address the Veteran's contentions as to nexus. As such, the Board finds this opinion to be inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In light of the above, the claim for cirrhosis must be remanded once again because the RO did not comply with the Board's prior remand directive to obtain a medical opinion adequate to fairly resolve the claim. See Stegall, 11 Vet. App. at 271; see also Barr, 21 Vet. App. at 311-12. On remand, this must be accomplished. Accordingly, the matters are REMANDED for the following actions: 1. Following the procedures outlined at M21-1, IV.ii.1.I.3.c., and based on a review of the Veteran's military occupational specialty and occupational exposure, make a formal finding regarding the likelihood that the Veteran was exposed to asbestos during service. 2. Then, forward the Veteran's claims file to a qualified VA physician (M.D.) WHO HAS NOT YET PROVIDED AN OPINION IN THIS CASE to provide addendum medical opinions with regard to the claims for service connection for cirrhosis, skin cancer, lower extremity neuropathy, and COPD, to include whether the claimed disabilities are secondary to service-connected PTSD, and/or exposure to asbestos or herbicide agents during service. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. Thereafter, the examiner is asked to provide fully-articulated medical opinions for each claimed disability adequately addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that the claimed disability was incurred in or caused by an in-service injury, illness, or event, to include potential exposure to herbicide agents and/or asbestos? (b) Is it at least as likely as not (50 percent or greater probability) that the claimed disability was caused by the Veteran's service-connected PTSD, to include smoking and alcohol abuse? (c) Is it at least as likely as not (50 percent or greater probability) that the claimed disability was aggravated by (increased in severity beyond its natural progression) the Veteran's service-connected PTSD, to include smoking and alcohol abuse? Separate opinions must be provided for questions (b) and (c). In addressing the matter of aggravation, the examiner should note that it is not required that the claimed disability is shown to be aggravated beyond natural progression "predominantly" by PTSD (and its symptoms), but rather, whether there is any contributing degree of aggravation beyond natural progression by the service-connected disability. Additionally, a finding of aggravation does not require that there be "permanent" worsening of the nonservice-connected disability. Any increase in disability is sufficient. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. It is imperative that the medical opinion(s) reconcile all available evidence of record, to include the Veteran's and appellant's lay statements, service treatment records, post-service medical records, including all prior VA examinations and medical opinions, private medical opinions, and any other pertinent evidence of record. The examiner is advised that the lay contentions of record must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. It should be noted that a lack of documented treatment for a claimed disability in service, while probative, cannot serve as the sole basis for a negative finding. The examiner is further advised that there is no legal requirement that the service-connected disability must be the sole cause or aggravation of the claimed disability. The examiner must provide a complete rationale for any opinions offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. The Board reminds the examiner (and RO) that failure to comply with the examination directives outlined herein will render the opinion(s) inadequate and will result in further remand of the claims. 3. Finally, after the requested development has been accomplished, readjudicate the claims with consideration of all the evidence associated with the claims file since the issuance of the last SOC/SSOC. If any benefit sought on appeal remains denied, issue a SSOC and allow the appellant appropriate time for response before returning the case to the Board for further appellate review. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.