Citation Nr: 21076757
Decision Date: 12/27/21	Archive Date: 12/27/21

DOCKET NO. 15-14 247A
DATE: December 27, 2021

ORDER

Entitlement to service connection for pre-skin cancer, also claimed as cancer due to asbestos and/or sun exposure, is denied.

REMANDED

Entitlement to service connection for a heart condition is remanded.

FINDING OF FACT

The most competent, probative evidence of record indicates that the Veteran's pre-skin cancer did not manifest during and is not causally or etiologically related to his active duty service, to include as due to asserted in-service sun exposure.

CONCLUSION OF LAW

The criteria for service connection for pre-skin cancer, also claimed as cancer due to asbestos and/or sun exposure, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from April 1975 to August 1977.

These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2012 and September 2013 rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that jurisdiction currently rests with the Milwaukee, Wisconsin RO. 

In October of 2018, the Veteran and his spouse presented testimonial evidence at a Travel Board hearing held before the undersigned Veterans Law Judge. A transcript is of record. 

These matters have a lengthy procedural history that has been outlined in detail in prior Board decisions that are incorporated herein by reference. Addressing the most relevant procedural history, this case was most recently previously before the Board in July of 2021 at which time it was remanded for additional development, to specifically include obtaining any outstanding relevant VA treatment records and new VA opinions. The case has now been returned to the Board for adjudication. 

Service Connection

Entitlement to service connection for pre-skin cancer, also claimed as cancer due to asbestos and/or sun exposure, is denied.

The Veteran contends that service connection is warranted as he claims that he had significant sun and/or asbestos exposure in-service that led to the pre-skin cancer condition he is currently claiming. See e.g. October 2018 Board Hearing Transcript. More specifically, he has asserted that he was, "exposed to the sun while working on the U.S.S. White Planes for long periods of time. I was always detailed to the small boats out in the water to repair them. This is where I had prolonged periods of sun exposure in the Philippines and Hong Kong where the sun was much more intense in these areas." See May 2021 Statement in Support of the Claim.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

In this case, the medical evidence of record, including opinions provided by VA examiners, confirms that the Veteran has been diagnosed with a pre-skin cancer condition. See e.g. February 2021 VA examination. It is also uncontroverted that the Veteran's DD 214 affirms that he was indeed stationed on the U.S.S. White Plains. Therefore, the question remaining for consideration is whether the Veteran's pre-skin cancer condition is, or may be presumed to be, etiologically related to his active service. In this case, the Board concludes that the most competent, probative evidence of record is not indicative of a nexus between the Veteran's pre-skin cancer and his active duty service.

Turning to the evidence of record, the Veteran's service treatment records are silent for complaints, evaluation or treatment of a pre-skin cancer condition. The Veteran's skin was evaluated as "normal" at his August 1977 separation examination. 

The record is thereafter silent for complaints or treatments related to a skin cancer condition for several decades after the Veteran's separation from active duty service. The transcript from the Veteran's October 2018 Board hearing indicates that the Veteran testified that it had "probably been 10 or 15 years" to the inquiry of "when did you get diagnosed with skin cancer?". By his own admission, this indicates that the Veteran's condition did not onset until, at the earliest, almost three decades after his departure from active duty. Significantly, a negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

In regard to a possible nexus between the Veteran's asserted pre-skin cancer and his military service, several medical opinions are of record. In January of 2020, a VA examiner confirmed following a review of the Veteran's claims file that the Veteran has a current diagnosis of "actinic keratosis [which] is a premalignant skin lesion." It was further noted that the Veteran's "facial skin type 1 has a propensity for such. His few yrs in the service 1975-77 are not sufficient for a nexus. Current skin conditions are only age and natural skin changes given his type 1 skin. STR's and ETS exam do not show a plausible nexus either." This opinion did not exclude the Veteran's asserted sun and/or asbestos exposure as being causes of any "type 1 skin" nor as potentially contributing to any "natural skin changes". 

The Board then remanded this claim in December of 2020, in part, for a new VA opinion. The first VA clinician who reviewed the record on remand in March of 2021 and authored a negative nexus opinion provided as rationale only that, "No medical Hx shows skin lesion during service. No documentation found proximal to military discharge regarding skin lesion condition. There are no medical records OR visits to determine medication usage for skin lesion during service. There is insufficient medical documentation to service-related skin lesion condition. THE CLAIMED CONDITION WAS LESS LIKELY THAN NOT (less than 50 percent probability) INCURRED IN OR CAUSED BY THE CLAIMED IN-SERVICE INJURY, EVENT, OR ILLNESS to include the possibility of exposure to asbestos and/or sun while stationed aboard a ship." In addition to the fact that this opinion did not provide any rationale in regard to asserted in-service asbestos or sun exposure, it also wholly relied on a lack of in-service records. See Dalton v. Nicholson, 21Vet. App.23 (2007).

The VA clinician who reviewed the record later in March of 2021 offered in support of another negative nexus opinion that "the claimant has no indication of in-service significant sun exposure or burns. There is no mention of sun damage or actinic keratosis developed proximate to service. Also known as a solar keratosis, an actinic keratosis grows slowly and usually first appears in people over 40. You can reduce your risk of this skin condition by minimizing your sun exposure and protecting your skin from ultraviolet (UV) rays. The claimant's age is consistent with the age of presentation of actinic keratosis from sun exposure over time in a claimant over 40 years old. Based on medical records reviewed and consideration of the veteran statements, the claimant's actinic keratosis is less likely than not incurred in or caused by in service illness, injury or events." This opinion also did not address the Veteran's asserted theory of in-service asbestos exposure in the provided rationale as previously instructed in a Board remand. See Stegall v. West, 11Vet. App. 268, 271 (1998).

As such, this claim was most recently remanded in July of 2021 for a VA addendum opinion. A VA examiner specifically considered the contentions made by the Veteran in indicating in an August 2021 opinion after a review of the Veteran's claims file that, "actinic keratoses are caused by chronic, lifetime sun exposure and associated tissue damage. The gamut runs from areas of patchy discoloration to the formation of wart-like raised lesions called AK's. These are not cancer but if left untreated may become squamous cell carcinoma. Other types of skin cancer such as melanoma and basal cell carcinoma can arise in the same areas but represent separate types of skin cancer. There is no evidence of these types of lesions while in service and that would've been unusual at the age of the veteran while on active duty. Studies have suggested a possible relationship to veterans' service and sun exposure but when corrected for age, sex, race, family history, pre-military activities, MOS, post-service recreational and occupational activities, skin type, etc., the relative risks have not been shown to suggest cause and effect. Therefore, it is less likely than not that the veteran's AK's and other skin changes are due to or incurred in excessive sun exposure while in the military and are due to a lifetime of sun exposure. Men, in particular, have a higher risk of sun exposure on the left upper extremity related to driving habits and a prevalence of lesions. Much of an individual's sun exposure on the upper extremities, face and neck are due to time behind the wheel of a vehicle (Cecil's and/or Harrison's textbooks of internal medicine). Actinic keratoses are in no way related to asbestos exposure. There is no known association between asbestos exposure and the development of AKs or any other skin cancer. This is established medical knowledge and practice. His sun exposure while in service is conceded but does not alter the above. It was two years out of a lifetime of sun exposure, intentional or otherwise."

This VA opinion is based on an accurate and comprehensive review of the pertinent evidence in the claims file and provides adequate supporting rationale to support the opinions stated. The VA examiner was aware of the Veteran's medical history, authored a fully articulated opinion, and furnished a reasoned analysis. The Board therefore attaches significant probative value to this opinion as it is well-reasoned, detailed, consistent with the other evidence of record, and included access to the accurate background of the Veteran. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board notes that each VA evaluation, even when lacking sufficient rationale, contains a similar conclusion. Significantly, there are no alternate opinions of record that would support the Veteran's assertions. Further, while the treatment records of record are acknowledged and have been reviewed, these records also do not offer any evidence indicative of a skin-related condition that onset doing is otherwise related to his military service. Thus, the Board relies on the August 2021 VA examiner's opinion in determining that the weight of the evidence indicates that the Veteran's pre-skin cancer condition is unrelated to his active duty service, to include his asserted in-service sun and/or asbestos exposure.

The Board acknowledges the Veteran's assertions that his pre-skin cancer is related to his military service, as well as the statements made by the Veteran's spouse. The Veteran and his wife are both competent to report on matters observed within their respective personal knowledge, such as observed skin symptomology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the diagnosis and etiology of skin cancer is not a matter capable of lay observation and requires medical expertise to determine as it is based on specific objective evaluation results. See e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, these statements, while acknowledged, are not probative in regard to the outcome of this claim.

The Board reiterates that the Veteran's service treatment records are silent for complaints or treatment of symptomology that would be indicative of pre-skin cancer-related manifestations. This condition also did not manifest to a compensable degree within a presumptive period and was not noted in service with attributable continuity of symptomatology. See Walker v. Shinseki, 708 F.3d at 1340 (Fed. Cir. 2013) (holding that only those chronic diseases listed in 38 C.F.R. § 3.309 are subject to service connection by continuity of symptoms described in § 3.303 (b)). Further, the evidence of record weighs against finding the Veteran's current pre-skin cancer condition manifested to a compensable degree within a year for similar reasons.

Instead, by his own assertions, the Veteran did not complain of or seek treatment related to skin cancer until well into the 2000s, over two decades after his separation from active duty and well outside of the applicable presumptive period. As noted above, the passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson, 230 F.3d 1330, 1333. Lastly, the most probative medical evidence of record indicates that the Veteran's skin cancer condition did not onset during and is unrelated to his active duty service.

The Board does not doubt that the Veteran has battled pre-skin cancer and is sympathetic in regard to his experience. However, the preponderance of the evidence is against all theories of entitlement alleged by the Veteran or raised by the record. Based on the foregoing, the preponderance of the evidence is against the claim of service connection for a pre-skin cancer condition, and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).

REASONS FOR REMAND

Entitlement to service connection for a heart condition is remanded.

Unfortunately, the Board is still unable to make a fully-informed decision in regard to the Veteran's asserted heart condition. More specifically, the VA examiner who provided a negative nexus opinion in August of 2021 stated as rationale that "there is no evidence of atrial fibrillation or 2nd° heart block, including the claimed events of dizziness and weakness, etc. The veteran claims to have been diagnosed with 2nd-degree heart block in 1983/1984. There is no record of treatment until in or around 2001, at which time replacement of prior 1991 implant is noted, making the diagnosis 7-8 years later. Regardless, it is less likely than not that the condition is due to or had its nexus in service. It is highly unlikely an individual could have endured with a 2nd heart block, with or without atrial fibrillation, without seeking care in the ensuing 14 years." In addition, that examiner stated that "the symptoms are conceded but do not alter this opinion and the likely onset was in or around 1991."

In contrast, the Board observes that a letter from a VA treatment provider that was associated with the record shortly before the August 2021 VA opinion was authored states that while "records only go back to 8/2001", this is because "prior care predates our current [system], thus it is difficult to say when earliest procedure was done" and "multiple records mention [a] prior device implant at [local] VA in the 1980s." That provider also noted that following an August 2001 "generator change for a low battery and an upgrade to dual chamber PPM, with new BA and RV lead", the Veteran had also been "noted to have prior retained RV leads, the known from 1991 and a prior RV lead from either 1981 or 198(?). He would only have leads that old with a pacemaker that old. We are attempting to see if the device manufacturer which registers implants, will have the oldest records."

Thereafter, a "[company name] Device Implant Query" was associated with the record which indicates that his earliest implant from that particular manufacturer was in 1988. However, the VA treatment provider indicated that he had a "prior RV lead" from earlier in that decade, and the Board notes that the Veteran could have had an earlier implant manufactured by someone else. The Board notes that the VA examiner did not acknowledge any of this recent development nor attempt to reconcile any discrepancies in authoring a negative opinion. More importantly, all of the foregoing indicates that the August 2021 VA examiner's assertions that the Veteran's condition "likely onset was in or around 1991" and the basis of the accompanying rationale are not factually accurate. As such, the Board cannot make a fully-informed decision until an additional VA opinion is obtained that contains consideration of an accurate reflection of the Veteran's medical history. See Reonal v. Brown, 5 Vet. App. 458 (1993) (a medical "opinion based upon an inaccurate factual premise has no probative value").

Lastly, while a medical opinion was obtained on remand, the record does not reflect that all of the Veteran's outstanding treatment records were obtained. When requesting relevant records from a federal department or agency, VA is obliged to continue to attempt to obtain the records until they are located, unless the records do not exist, or further attempts would be futile. See 38 U.S.C. § 5103A (c). The letter authored by the VA treatment provider indicates that VA treatment records (from the 1980s and 1990s at the [local] VA) that were once in the possession of VA are now unavailable. Even if it is determined that such records are unavailable on remand, this should be explicitly stated in a formal finding of unavailability.

The matter is REMANDED for the following actions:

1. Associate with the record any outstanding VA treatment records that are relevant to the issue being remanded with particular focus on records from the 1980s and 1990s from the [local] VAMC relevant to the Veteran's asserted heart condition. All attempts to fulfill this development must be documented in the claims file. It appears from the August 2021 letter authored by a VA treatment provider that these records may be unavailable. If there are unavailable VA treatment records, the RO must document all search efforts in a Formal Finding of Unavailability Memorandum and must associate this Memorandum with the evidence of record. Additionally, the Veteran and his representative must be notified of this finding in writing.

2. Following the completion of step one, ask the appropriate clinician to review the Veteran's file regarding his heart condition. The clinician(s) must be provided with and review the entire claims file, to include a copy of this remand, and it should be indicated that such records were reviewed. Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should opine:

Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's heart condition disability had an onset in service or is otherwise related to an in-service injury, event, or disease. 

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(a.) The clinician is specifically asked to reconcile, to the extent possible: (a) the Veteran's assertion that his condition began manifesting during service with symptomology including dizziness and weakness as well as his service treatment records confirming that he was treated for dizziness and similar symptomology during his military service; (b) the medical article referenced by the Veteran in the May 2021 lay statement as well as his assertion that "I was actually diagnosed with 2nd degree AV block in 1982 or 1983 due to my symptoms of dizziness and almost passing out... [the VA] examiner [who authored the opinions on remand] only focused on the atrial fibrillation and not the 2nd degree AV block. The symptoms of 2nd degree AV block are dizziness, fainting. The feeling that your heart pauses for a beat."; (c) "[company name] Device Implant Query"; and (d) the letter from a VA treatment provider that was associated with the record shortly before the August 2021 VA opinion was authored and states that while "records only go back to 8/2001", this is because "prior care predates our current [system]" and "multiple records mention [a] prior device implant at [local] VA in the 1980s." That provider also noted that following an August 2001 "generator change for a low battery and an upgrade to dual chamber PPM, with new BA and RV lead", the Veteran had also been "noted to have prior retained RV leads, the known from 1991 and a prior RV lead from either 1981 or 198(?). He would only have leads that old with a pacemaker that old." 

3. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review.

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Smith, 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.