Citation Nr: 21075257 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-00 665 DATE: December 20, 2021 ORDER Entitlement to service connection for actinic keratosis as secondary to prostate cancer is denied. REMANDED Entitlement to service connection for a right hip disability, to include degenerative joint disease (DJD) and right flank pain, as secondary to prostate cancer, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's actinic keratosis was either proximately caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for actinic keratosis as secondary to prostate cancer have not been met. 38 U.S.C. § 1110, 1154, 5107; 38 C.F.R. § 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1964 to August 1968. This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions, dated August 2014 and June 2017, issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its August 2014 decision, the RO denied service connection for right hip DJD. In its June 2017 decision, the RO denied service connection for actinic keratosis. The Veteran timely appealed both of these decisions. The Veteran testified at a May 2020 Board virtual hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been reviewed and associated with the Veteran's claims file. The Veteran's appeal has previously been before the Board. In September 2020, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction (AOJ) for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 21.900(c). 38 U.S.C. § 7107(a)(2). SERVICE CONNECTION In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310; Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for actinic keratosis as secondary to prostate cancer The Veteran claims entitlement to service connection for actinic keratosis as secondary to prostate cancer. The Veteran, his representative, and the record raise no other theory of service connection. As a result, the Board will limit its analysis to the theory advanced by the Veteran. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). Following a thorough review of the Veteran's medical records, the Board finds that he is not entitled to an award of service connection. As an initial matter, the Board finds that the Veteran has satisfied the first element of secondary service connection, a current disability. A review of the Veteran's January 2021 VA examination shows the Veteran has actinic keratosis. See VA Examination dated January 2021. Therefore, the Board finds that the Veteran has satisfied the first prong of service connection, the existence of a current disability. As to evidence of a service-connected disability, the Veteran is service-connected for radiation cystitis associated with erectile dysfunction, residual of prostate cancer, among other disabilities. Therefore, the Board finds that the Veteran has satisfied the second prong of service connection on a secondary basis: evidence of a service-connected disability. Turning next to evidence of a causal relationship between the service-connected disability and the current actinic keratosis, the Board finds the weight of the competent evidence does not support a nexus. In determining this, the Board finds the medical opinion of the January 2021 VA examiner to be probative and entitled to significant weight. The Veteran underwent a VA examination in May 2017 for skin diseases. The examiner diagnosed current actinic keratosis. She was not asked for a nexus opinion in conjunction with this examination, but remarked that the actinic keratosis was a "new and separation diagnosis and not related to [his already service-connected] tinea cruris." In a September 2017 Notice of Disagreement (NOD), the Veteran wrote, I believe my actinic keratosis is directly contributed by the radiation and chemo I received for my service connected prostate cancer...I received radiation treatments daily for 10 and a half weeks, each session lasted about 30 minutes. I was told by the techs and oncologist that I was given the highest level of radiation allowed by federal law. The treatments made me more susceptible to actinic keratosis. The VA examiner's opinion is not valid in that her opinion was formed before I ever entered the exam. The first thing she told me when I walked into the room was, "We're not looking at any cancers." This condition is contributed due to my weakened immune defense by cancer chemotherapy, making me less able to fight off effects of ultra-violet radiation and more likely to develop actinic keratosis. The first nexus opinion addressing actinic keratosis was provided in October 2017. The VA examiner checked a box stating that the Veteran's actinic keratosis is at least as likely as not proximately due to or the result of the Veteran's service-connected condition. The rationale, however, stated that the Veteran's "[a]ctinic keratosis [AK] is less likely due to radiation treatment for prostate cancer. AK is a pre-cancerous, usually form when skin gets damaged by ultraviolet radiation from the sun or indoor tanning beds. Left untreated, they may turn into a type of cancer called squamous cell skin cancer. Radiation treatment for prostate cancer involve X-rays, gamma rays, and charged particles...Radiation treatment for prostate cancer does not involve ultraviolet rays. His current actinic keratosis is less likely due to radiation treatment for prostate cancer." In a December 2017 VA Form 9, the Veteran wrote that his actinic keratosis skin condition was caused and/or aggravated by his service-connected prostate cancer treatment with X-rays, gamma rays and charged particles. He provided, VA's Statement of the Case states my "actinic keratosis (AK) is pre-cancerous, usually forms when skin gets damaged by ultraviolet radiation from the sun or indoor tanning beds. Left untreated may turn into a type of cancer called squamous cell skin cancer." However, I avoid the ultraviolet radiation from the sun, i.e. cover up with clothing, etc. and I've never used or gone into a tanning bed. I contend that the 'gamma rays' treatment I received caused and made me more susceptible to suffer with the chronic actinic keratosis and its symptoms. It is of record that gamma rays/radiation causes a number of health effects, including weakening the immune system especially if the gamma rays were directed at the bones in the pelvis. The bone marrow works as a blood cell factory and the marrow produces both red and white blood cells, the white blood cells are part of the immune system. The exposure to the gamma rays, specifically in the pelvis area, compromised what the bone marrow's job is and so compromised my immune system making me more susceptible to coming down with chronic actinic keratosis. I understand VA's SOC states it's a 'pre-cancerous' condition. However, the fact that it is a 'chronic skin condition' that I've suffered with since my service-connected prostate cancer treatment supports VA awarding actinic keratosis a service-connected disability rating. The Veteran contends that his actinic keratosis was caused by the radiation treatment necessary for his service-connected prostate cancer. He reported that his actinic keratosis is "all from the radiation. Radiation coming up through the bottom, so everything on my cheeks, in the groin area to the back, down my back of my legs to almost to the knee. Again, about three weeks, three and a half weeks, that's when the burning came through. And when...you're talking about high or the high setting for the radiation, that's going to do damage to your skin there. It's going to do damage to your nerves, everything, as it's going through all that...I've got powders, I've got creams, I've got sprays to help me with this. Just sitting for about 10 minutes, you know, the nerves and the skin and everything starts to hurt. I'll start to perspire." See Hearing Transcript dated May 2020. Because the October 2017 rationale was in conflict with the checked opinion box, the Board remanded the claim in September 2020 in order to obtain an addendum opinion which addressed the conflict between the October 2017 VA examiner's statement that the Veteran's actinic keratosis was at least as likely as not proximately due to or the result of the Veteran's service-connected condition and his statement that his current actinic keratosis was less likely due to radiation treatment for prostate cancer. Thereafter, the Veteran underwent another VA examination in January 2021. He opined that the actinic keratosis was less likely than not proximately due to or the result of the Veteran's service connected condition. The examiner reasoned: [T]here is no connection between the claimed actinic keratosis and the service-connected radiation cystitis from prostate cancer. Veteran's actinic keratosis [AK] is less likely due to radiation treatment for prostate cancer as it is a pre-cancerous lesion, usually from when skin gets damaged by ultraviolet radiation from the sun or indoor tanning beds. Left untreated, they may turn into a type of cancer called squamous cell skin cancer. Radiation treatment for prostate cancer involve X-rays, gamma rays, and charged particles radiation treatment for prostate cancer and does not involve ultraviolet rays. Therefore, there is no nexus between AKs and the radiation cystitis due to prostate cancer treatment. The January 2021 VA examiner also opined that the actinic keratosis was less likely than not aggravated by the Veteran's radiation cystitis. The examiner reasoned, There is no connection between the actinic keratosis and the service-connected radiation cystitis from prostate cancer. Actinic keratosis is from when skin gets damaged by ultraviolet radiation from the sun or indoor tanning beds. Radiation treatment for prostate cancer involve X-rays, gamma rays, and charged particles radiation treatment for prostate cancer and does not involve ultraviolet rays. The Board acknowledges the Veteran's dissatisfaction with the May 2017 VA examination but finds that the subsequent opinions of the October 2017 and January 2021 VA examiners are probative, as they provided clear conclusions with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that the question of whether a nexus exists between the Veteran's service-connected prostate cancer and his current actinic keratosis is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is a medically complex issue requiring specialized medical education or knowledge. See 38 C.F.R. § 3.159(a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Because the Veteran does not have specialized medical training, experience, or knowledge, his opinion, no matter how sincere, is not competent nexus evidence. The opinions of the VA examiners, on the contrary, are based on medical training, expertise, and experience and are competent evidence against the claim. Therefore, the Board has reviewed all medical and lay evidence, but finds there is no competent evidence of record which establishes a causal relationship between the Veteran's actinic keratosis and service-connected prostate cancer treatment, to include radiation cystitis. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a right hip disability, to include DJD and right flank pain, as secondary to prostate cancer is remanded. The Veteran contends that his right hip disability was caused by the radiation treatment necessary for his service-connected prostate cancer. He reported that [w]hen I got radiation treatment for my prostate, that radiation treatment was 360 degrees." See Hearing Transcript dated May 2020. "That means as you're [lying] on the table, the machine starts at the bottom and works all the way around. On the right hip, the radiation had to go through the hip bone in order to hit the cancerous area. About four weeks into that treatment my hip was starting to hurt, and it was hurting real[ly] bad. They put me on Ibuprofen treatment...to keep the inflammation down and so I could...walk because there were days I couldn't walk very good. I mean it really hurt...[W]hen you're talking about radiation, I had the max amount as far as time goes and the max amount on the level setting that they had that it was allowed by law in order to try to kill that cancer because the cancer was in a very bad place on the prostate where it could easily jump to other organs...I still have problems with the hip when it inflames...In the first three to four weeks of that radiation there was a lot of...hurt to the skin and everything, but around the four-week level, that's when the hip started to kick in. The Veteran underwent a VA examination in July 2014. The VA examiner diagnosed very minimal DJD of the right hip. He cited to several treatment records showing that degenerative changes in the right hip and complaints of right flank pain were present prior to radiation treatment. He determined that the Veteran's right hip disability was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner reasoned that, "[w]hat [the] Veteran is calling right hip pain is pain along right flank 3 inches above level of iliac crest. Hip pain is usually felt at the groin. Veteran made this complaint on 11/13/06 well before radiation for prostate cancer. [He] did receive radiation for NSC unrelated right finger squamous cell ca[ncer] in 2005. Bone scan done before radiation of prostate did document degeneration of joints and spine denoting changes of aging. Unremarkable exam and again current symptoms are not from the hip but right flank." In its September 2020 remand, the Board found that the July 2014 VA examiner adequately addressed whether the radiation administered to treat the Veteran's service-connected prostate cancer caused his current right hip DJD and flank pain. However, the Board determined that the opinion did not address whether radiation aggravated his current right hip disability. Thus, in September 2020, the Board remanded the claim in order to obtain an aggravation opinion, asking: "Is it at least as likely as not (probability of 50 percent or greater) that the radiation treatment for the Veteran's prostate cancer aggravated (worsened beyond the natural progression) his current degenerative joint disease OR right flank pain?" Thereafter, the Veteran underwent another VA examination in January 2021. The examiner opined that on review, there was no connection between the claimed right hip osteoarthritis and the service-connected radiation cystitis from prostate cancer. The examiner reasoned, Veteran's right hip osteoarthritis is less likely aggravated beyond its natural progression due to radiation treatment for prostate cancer as it is a musculoskeletal condition acquired from normal wear and tear and was not accelerated due to radiation cystitis or any residual symptoms of radiation for prostate cancer. Therefore, there is no nexus between right hip osteoarthritis and the radiation cystitis due to prostate cancer treatment and any currently diagnosed condition(s) related to the Veteran's right hip osteoarthritis is less likely than not aggravated beyond its natural progression by the Veteran's radiation cystitis. The examiner provided an addendum opinion in July 2021 regarding the Veteran's right flank pain. The examiner provided, Right flank pain is not part of the right hip disability and is a separate and distinct condition of an unknown origin. The right flank pain is not due to prostate cancer and its treatment. The radiation cystitis from prostate cancer treatment can manifest from minor, temporary, irritative voiding symptoms and painless, microscopic hematuria to more severe complications, such as gross hematuria; contracted, nonfunctional bladder, persistent incontinence; fistula formation and necrosis. Medical literature supported by peer reviewed journals do not support any flank pain or injury to lateral muscles or organs in the treatment or sequelae of prostate cancer. While the Board finds that the January 2021 VA examiner's opinion adequately addressed whether the radiation administered to treat the Veteran's service-connected prostate cancer aggravated his current right hip DJD, and the July 2021 VA examiner's addendum opinion adequately addressed whether the radiation administered to treat the Veteran's service-connected prostate cancer caused his current right flank pain, the opinions did not address whether radiation aggravated his current right flank pain. Therefore, the Board finds that a remand is required in order to obtain a very narrow addendum opinion which addresses whether the Veteran's right flank pain was aggravated by the radiation treatment for his service-connected prostate cancer. Accordingly, the matter is REMANDED for the following action: 1. Request an addendum opinion from the July 2021 examiner (if not available, then from a qualified provider). An in-person examination is not required unless deemed necessary by the examiner. Based upon a review of the entirety of the claims file, the examiner is requested to provide a medical opinion as to the following question: (Continued on the next page) Is it at least as likely as not (probability of 50 percent or greater) that the radiation treatment for the Veteran's prostate cancer aggravated (worsened beyond the natural progression) his current right flank pain? Why or why not? LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.