Citation Nr: 21008313 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 18-06 994 DATE: February 16, 2021 ORDER Service connection for basal cell carcinoma is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for coronary artery disease is remanded. Entitlement to an initial rating in excess of 10 percent for lumbar strain is remanded. Entitlement to an initial rating in excess of 10 percent for right knee torn meniscus (flexion) is remanded. Entitlement to an initial compensable rating for right knee torn meniscus (extension) is remanded. FINDING OF FACT Resolving all doubt in the Veteran’s favor, his currently diagnosed basal cell carcinoma is related to his military service. CONCLUSION OF LAW The criteria for service connection for basal cell carcinoma have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Air Force from July 1981 to June 2002. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of the hearing is associated with the record. As the Veterans Law Judge is no longer with the Board, the Veteran was informed that he may testify at a new Board hearing before a different Veterans Law Judge in a December 2020 letter; however, he indicated that he did not want another Board hearing in a response received in January 2021. Subsequent to the issuance of the December 2017 statement of the case, the Veteran, through his representative, submitted additional evidence for consideration in his appeal in October 2020. 38 U.S.C. § 7105(e)(1). Further, while unrelated VA examination reports were also subsequently associated with the record, such are irrelevant to the instant claims. 38 C.F.R. § 20.1304(c). Thus, there is no prejudice to the Veteran in the Board proceeding with a decision at this time. 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, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for basal cell carcinoma. The Veteran contends that he is entitled to service connection for basal cell carcinoma. Specifically, at the April 2020 Board hearing, the Veteran reported that he believed his basal cell carcinoma was due to a severe sunburn he got while in service. He reported that, during service, there was one day in 1988 or 1989 when he was helping to park cars at a squadron fundraising function at the county fair. He was there for six hours in a tank top with a hat, and he ended up getting the tops of his ears sunburned off. He stated that he had scars to this day. He further reported that, in 2004, he had an itchy spot on his forehead that had come and gone, and his dermatologist said it was basal cell skin cancer. He had that area removed. He noted that he has since had other affected areas on his face removed. The Veteran stated that he has never been a sun tanner, and he wears hats all the time. He further noted that his 2004 diagnosis of basal cell skin cancer was two years after separation from active service. Therefore, the Veteran claims that service connection for basal cell carcinoma is warranted. As an initial matter, the Board finds that the competent evidence of record confirms that the Veteran has a current diagnosis of basal cell carcinoma and basal cell removal with residual scars, as shown by a March 2015 VA examination. The Veteran’s DD Form 214 indicates that he worked as a visual information craftsman for 20 years and 11 months during active service. Further, his service treatment records (STRs) of record do not contain evidence of complaints, diagnosis, or treatment of basal cell carcinoma during the Veteran’s active service. In the Veteran’s Reports of Medical History from the September 1981 enlistment examination and the April 2002 separation examination, the Veteran reported that he had not experienced any skin disease. In the Report of Medical Examination from the April 2002 separation examination, no relevant skin defects were noted. Here, the Board acknowledges that the Veteran believes his STRs are incomplete. Specifically, he reported that his service records went to St. Louis and the first ten years of his military records are lost; and that he had no documented proof that his in-service incident (as described above) happened. While there is no indication in the record that the Veteran’s STRs are incomplete at this time, the Board observes that the majority of his available STRs include records from the 1990s rather than the 1980s. In this regard, the absence of documented treatment in service is not fatal to a service connection claim. A veteran is competent to report that which he perceives through his symptoms, which in this case, would include severe sunburn. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has consistently reported throughout his medical evaluations (as discussed in detail herein) and sworn testimony (as described above) that he experienced a severe sunburn while in service. Thus, the Board finds the Veteran’s statements to be credible and of significant probative value. The record also contains competent medical evidence corroborating the Veteran’s assertion that his currently diagnosed basal cell carcinoma had its onset following his severe sunburn in service and has continued since. In this regard, the Veteran’s post-service private medical treatment records indicate that he was diagnosed with basal cell carcinoma in 2004, and he had the affected area excised. Over the years since then, he has had other affected areas of basal cell carcinoma removed, as well. Further, in a March 2014 letter, the Veteran’s private physician, Dr. KD, stated that, during his care of the Veteran over the past 10 years, he developed three basal cell carcinomas on the face. The Veteran had reported a history of blistering sunburns that occurred during active duty responsibilities in the 1980s. Thus, Dr. KD concluded that it is as likely as not that the Veteran’s current basal cell carcinoma was significantly impacted by sunburns and damage that occurred during active service. As noted above, the Veteran underwent a VA examination in March 2015 for his skin condition. At such time, the examiner noted that the Veteran had been treated for several basal cell skin cancers on his face, and that the Veteran stated that his military work required him to be outside in the sun. The Veteran remembered particularly bad sunburn in the 1980s in New Mexico; he stated that he got very bad sunburn with blisters and could not wear his uniform for two weeks. The examiner noted that the Veteran’s first skin cancer was diagnosed shortly after discharge from active military service. The examiner acknowledged that most basal skin cancers are related to sun exposure and particularly to severe sunburns. However, the March 2015 VA examiner observed that, unfortunately, there are no medical records to support treatment for sunburn during active service. Thus, the examiner concluded that the claimed basal cell carcinoma condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Here, the Board observes that the March 2015 VA examiner based her negative opinion on the lack of documented in-service treatment for sunburn; and thus, has assigned such opinion with low probative value. In contrast, in a November 2015 letter, Dr. KD noted that the Veteran reported a history of blistering sunburns that occurred during active duty responsibilities in the 1980s. Dr. KD stated that development of skin cancer may require up to 20 to 30 years after such insults before clinical development. Dr. KD concluded that it is as likely as not that the Veteran’s current condition of basal cell carcinoma was significantly impacted by sunburns and damage that occurred during active service. Furthermore, in a December 2015 letter, another private physician, Dr. JS, stated that the Veteran was a patient of his in a dermatology clinic in 2014 and 2015. Over that time, the Veteran was diagnosed and treated with four basal cell carcinomas on his face that have required surgical treatment to remove the cancer. Dr. JS stated that the most significant known risk factor for basal cell carcinoma is the chronic accumulation of ultraviolet light induced damage to skin cells. Dr. JS noted the Veteran’s reported history of blistering sunburns that occurred during active service, including in 1989 at Holloman Air Force Base. Dr. JS found that it is as likely as not that the Veteran’s current condition of basal cell carcinoma was significantly impacted by the sunburns and skin damage that occurred during active service. In a March 2016 statement, the Veteran stated that, in July 1998 while stationed at Holloman Air Force Base in New Mexico, he was working outdoors at a county fair as part of a squadron fundraiser; and as a result of being outdoors for four hours with no protection from the sun, he received second degree burns on his face, shoulders, and neck. He required multiple visits to the base hospital over the following weeks for treatment of the blistering and bleeding from the burns. He further stated that, when he noticed the first instance of what turned out to be basal cell carcinoma on his forehead, he did not know what it was. It would appear for a few weeks then disappear for a few months; this pattern continued until spring 2004 when it appeared again and did not go away. His primary care physician, Dr. TH, removed a sample of the area and sent it away for biopsy. The sample tested positive for basal cell carcinoma, and a dermatologist, Dr. WD, surgically removed the affected area. He subsequently found other occurrences of skin cancer and had them surgically removed. Also of record is a September 2020 private medical opinion, in which Dr. FG noted that the Veteran had scars from excision of basal cell carcinoma, and his first diagnosis of basal cell carcinoma came shortly after his active service. Dr. FG noted that, in the late 1980s, the Veteran sustained severe sunburns with blisters and was unable to wear his uniform for two weeks. Dr. FG stated that sunburn blisters represent second degree sunburn. The Veteran stated that, during active service, he sustained repeated skin reactions to exposure to the sun; and on a recurrent basis, he would have burn of the skin with formulation of bullae (i.e., second degree burns). He had since had multiple excisions of basal cell carcinoma. Dr. FG stated that exposure of the basilar layers of the skin to solar radiation has led to repeated DNA disruption of the basal cells with development of basal cell carcinoma. Based on the foregoing, the Board finds that a state of relative equipoise as to whether the Veteran’s basal cell carcinoma was incurred in service has been reached. Accordingly, the Board resolves all doubt in favor of the Veteran and finds his currently diagnosed basal cell carcinoma is related to his military service. Therefore, service connection for such disorder is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for coronary artery disease 2. Entitlement to an evaluation in excess of 10 percent for lumbar strain 3. Entitlement to an evaluation in excess of 10 percent for right knee torn meniscus (flexion) 4. Entitlement to a compensable evaluation for right knee torn meniscus (extension) In connection with his increased rating claims, the Veteran was afforded VA examinations in May 2015 that addressed the nature and severity of his coronary artery disease, back, and right knee disabilities. However, the Board finds that, as the Veteran testified to additional coronary artery disease, back, and bilateral knee symptomatology at his April 2020 Board hearing, a remand is necessary in order to afford him VA examinations so as to address the current nature and severity of such disabilities. In this regard, the Veteran stated that, concerning his heart disorder, he did not have the energy that he used to. He also stated that, compared to five years ago, his knee range of motion was less, and the pain was more. His ability to bend and extend the knee was less than it was five years ago, and he could not stand for longer than 10 or 15 minutes without pain. Additionally, the Veteran indicated that he could not ride a bike or walk like he used to; that he had trouble sleeping at night, and woke up in the middle of the night with pain in his knee and back; that, compared with five years ago, the lower part of his back was very painful and tight; and that he had pain going up and down stairs at his home, sitting in his chair at work, and reaching over. He further indicated that he experienced numbness in his legs, as well as pain down both legs; and he had to shift himself in his seat or stand up. Therefore, as the evidence suggests that the Veteran’s coronary artery disease, back, and bilateral knee symptomatology may have increased in severity since the May 2015 VA examinations, a remand is necessary in order to schedule him for appropriate VA examinations in order to assess the current nature and severity of such service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). In conducting the above examinations for the Veteran’s back and bilateral knee disabilities, the examiner should comply with the holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), to include providing retrospective opinions as to the findings documented at the May 2015 VA examinations under Correia. Accordingly, the matters are REMANDED for the following actions: 1. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected coronary artery disease. The record, including a complete copy of this Remand, must be made available for review in connection with the examination, and all indicated tests and studies should be undertaken. The examiner should describe the nature and severity of all manifestations of the Veteran’s coronary artery disease. He or she should specifically assess the Veteran’s workload in METs and provide his current LVEF. If a new stress test is contraindicated, and/or interview-based MET data is provided in lieu of a stress test, the examiner should explain why. The examiner should also indicate whether the Veteran’s heart disease results in acute or chronic congestive heart failure and, if acute, the frequency of such episodes. The examiner should also describe the functional impact of the Veteran’s coronary artery disease. A rationale should be provided for any opinion offered. 2. Afford the Veteran appropriate VA examinations to determine the current nature and severity of his service-connected back and bilateral knee disabilities. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available for review in connection with the examinations. If possible, such examinations should be conducted during a flare-up. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s back and bilateral knee disabilities. (B) The examiner should record the range of motion of the back and bilateral knees observed on clinical evaluation in terms of degrees for all relevant planes. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. (C) The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran’s back and right knee disabilities conducted in May 2015. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. (D) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (E) If the Veteran endorses experiencing flare-ups of his back and/or bilateral knees, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (F) With respect to the Veteran’s back disability, the examiner is also requested to indicate whether intervertebral disc syndrome related to such service-connected disability is present. If so, the examiner should the total duration of any incapacitating episodes over the past 12 months. The examiner is advised that an ‘incapacitating episode’ is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The examiner is also requested to indicate whether the Veteran’s back disability results in any objective neurologic impairments, to include radiculopathy of the right and/or left lower extremity and, if so, the nature and severity of such neurologic impairment. (G) With respect to the Veteran’s bilateral knee disability, the examiner should also comment as to whether (and if so, to what extent, (i.e., slight, moderate, or severe)) such results in recurrent subluxation or lateral instability. The examiner should also indicate whether there is dislocated or removed semilunar cartilage and, if so, the nature of the symptoms associated with such meniscus impairment. (H) The examiner should also comment upon the functional impairment resulting from the Veteran’s back bilateral knee disabilities. A rationale should be provided for any opinion offered. K. STANTON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dawn A. Leung, 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.