Citation Nr: 21009008 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-53 693 DATE: February 18, 2021 ORDER Entitlement to service connection for residual scarring of the left head area status post-surgical removal of basal cell skin cancer is granted. Entitlement to service connection for left ankle disability is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his residual scarring of the left head area status post-surgical removal of basal cell skin cancer is at least as likely as not related to his in-service sun exposure. 2. The preponderance of the evidence is against finding that the Veteran’s left ankle disability began during active service, or is otherwise related to an in-service event, injury, or illness. CONCLUSIONS OF LAW 1. The criteria for service connection for residual scarring of the left head area status post-surgical removal of basal cell skin cancer have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1976 until his honorable discharge July 1980, and again from December 1980 until his honorable retirement in May 1999. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by the Seattle, Washington Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for these claimed disabilities. The Veteran filed a timely notice of disagreement with the rating decision. The RO continued its denial in a statement of the case (SOC) from which the Veteran filed a timely appeal to the Board. In January 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. In May 2019, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain VA examinations as to each claimed disability, which the RO accomplished. The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the issues on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. §§ 1154(a); 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. 1. Entitlement to service connection for residual scarring of the left head area status post-surgical removal of basal cell skin cancer First element: A current disability As to the first element of service connection, a current disability, the medical and lay evidence of record credibly establishes that the Veteran has a scar about the left side of his head. Thus, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof As to the second element of service connection, an in-service event, injury, or illness that occurred while on active duty, the Veteran asserted that his prolonged exposure to sunlight during his active service between 1986 and 1990 while stationed in Twentynine Palms, California, caused him to develop malignant skin cancer about his head. Consequently, he was required to have surgery to remove the skin cancer. The Veteran is competent to report the medical treatment he received and the medical diagnoses from his medical professionals. But he is not competent to report that he developed skin cancer due to his sunlight exposure while in service as it requires medical expertise that he does not have. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). The medical evidence of record establishes that he did develop basal cell carcinoma following his military service. See February 2015 Non-VA Care Consult Note (indicating the Veteran underwent surgical removal of skin cancer on the left side of his forehead in January 2015); see also July 2016 VA Dermatology Outpatient Note (documenting follow-up treatment). The Board finds this evidence credible and probative. The Board finds no evidence in the record to contradict the Veteran’s assertions that he was exposed to prolonged sunlight during his active military service. The Board finds his assertion credible and probative, particularly because he has been consistent in his assertion to VA and to medical professionals. See, e.g., June 2014 VA Primary Care Outpatient Note (asserting sun exposure); August 2015 VA Dermatology Outpatient Note (asserting same); July 2016 VA Dermatology Outpatient Note (asserting same). Therefore, the second element is satisfied. Third element: A causal link As to the third element of service connection, a causal link between the Veteran’s residual scar and in-service prolonged sunlight exposure, the Board finds the relevant evidence of record is in equipoise. The Board finds no competent lay or medical evidence of record that positively links the Veteran’s in-service prolonged sunlight exposure with his development of skin cancer and resulting residual scarring. The RO obtained two VA examinations to address the etiology of the Veteran’s skin cancer and residual scarring. To note, the RO sought an opinion as to the etiology of the Veteran’s skin cancer—even though he did not have skin cancer at the time—because if the Veteran’s skin cancer could not be causally linked to his service, then it followed that his residually scarring could also not be linked to his service. First, an October 2019 VA examiner was unable to render an opinion without resorting to mere speculation as to whether the Veteran’s skin cancer with residual scarring was incurred in or caused by his in-service sun exposure. The examiner noted that the Veteran reported no history of sunburns in his lifetime. Based on the information provided to the examiner by the Veteran, the examiner estimated that the Veteran was possibly exposed to sunlight 4,485.5 days outside of his military service and 6,479 days in service. Relying on medical literature, the examiner cited the Veteran’s sun exposure and light skin coloration as risk factors for development of basal cell carcinoma. The examiner also cited a study that suggested exposure to sunlight during childhood was more important than exposure during adulthood. Yet, other medical literature did not make such an assertion about the timing of sunlight exposure in a person’s life. Overall, the inconsistency in the medical literature on timing, childhood versus adulthood, of sunlight exposure in connection with development of basal cell skin cancer prevented the examiner from forming an opinion. Absent evidence to the contrary, the Board finds the October 2019 VA examiner was competent to exam and diagnose the Veteran, and to provide a medical opinion on the etiology of the Veteran’s skin cancer and residual scarring. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board also finds the examiner’s medical opinion and supporting rationale credible and probative. The examiner relied on accurate facts, a thorough in-person examination, considered the Veteran’s medical history and lay statements, and provided a clear, well-reasoned rationale. The Board finds the examiner considered all procurable and assembled data, and the opinion reflects the limitation of knowledge in the medical community at large and not a limitation of the individual examiner. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The RO obtained another opinion by a VA-contracted examiner in August 2020. The examiner opined that the Veteran’s residual scarring was less likely than not incurred in or caused by his in-service sun exposure. Although the opinion was negative, the examiner’s reasoning was similar to that of the October 2019 VA examiner, to include relying on similar literature. The August 2020 VA-contracted examiner stated that while the Veteran was exposed to sunlight in service, he was also exposed to sunlight prior to service. The October 2019 VA examiner concluded that “there is no way to determine if the Veteran’s sun exposure as a child or . . . as an adult in military service or later led to hi[m] developing [ ] basal cell carcinoma.” Based on the examiner’s reasoning, the Board does not find his opinion credible or probative because it is inconsistent with his supporting rationale. The examiner was able to opine the Veteran’s skin cancer and residual scarring was less likely than not due to his in-service sun exposure but, yet, he opined there was “no way” to determine if his childhood or adulthood sun exposure led to his disability. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings). The examiners’ opinions, while different, are consistent in their rationale. Each examiner relied on the Veteran’s childhood and adulthood sun exposure, relevant medical literature, and personal and medical history of the Veteran. Each examiner concluded that it was not possible to determine whether the Veteran’s in-service sunlight exposure led to his skin cancer and resulting scarring. Significantly, their respective rationales did not exclude the Veteran’s in-service sun exposure as a reasonable cause of his skin cancer and residual scarring. The Board interprets their rationale as implying that the Veteran’s in-service sun exposure may have equally contributed to the Veteran’s skin cancer and residual scarring. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) (Board is capable of interpreting medical opinion evidence) (citing Harvey v. Shulkin, 30 Vet. App. 10, 20 (2018)). Therefore, as the evidence is in relative equipoise, the Board gives the Veteran the benefit of the doubt and finds the Veteran’s development of skin cancer with residual scarring is causally linked to his in-service sunlight exposure. 38 U.S.C. § 5107(b). Therefore, the third element is satisfied. Accordingly, the Veteran is entitled to service connection for residual scarring of the left head area status post-surgical removal of basal cell skin cancer. Entitlement to service connection for left ankle disability First element: A current disability As to the first element of service connection, a current disability, the Veteran testified that he suffered from soreness and tenderness of his left ankle during motion, thus limiting functionality. January 2019 Board Hearing Transcript, at 3–4. According to an October 2019 VA examination, the Veteran’s left ankle displayed abnormal or outside of normal range of motion. The Veteran’s dorsiflexion was 0 – 10 degrees (where normal the range is 0 – 20 degrees) and his plantar flexion was 0 – 30 degrees (where normal the range is 0 – 45 degrees). In addition, the examiner estimated that during flare-ups the Veteran’s dorsiflexion decreased to 0 – 7 degrees and plantar flexion decreased to 0 – 20 degrees. The U.S. Court of Appeals for the Federal Circuit has held that pain alone may constitute a disability, even without an identifiable underlying pathology. Saunders v. Wilkie, 886 F.3d 1356, 1367–68 (Fed. Cir. 2018). The veteran’s pain, however, must amount to a functional impairment of earning capacity to constitute a disability. Id. at 1367. Providing the benefit of the doubt to the Veteran, the Board finds that the Veteran’s left ankle pain and associated limitation of movement meet the regulatory standards to be considered a “current disability.” Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof As to the second element of service connection, an in-service event, injury, or illness that occurred while on active duty, the Veteran testified at his January 2019 Board hearing that he injured his left ankle during active service. He relies on this in-service injury as the event that led to his current left ankle disability. The Veteran’s service treatment records (STRs) indicate that in January 1992 he suffered a second-degree inversion left ankle sprain that resulted in pain and swelling. The medical professionals placed his left ankle in a walking cast the following day. Approximately two weeks later, the cast was removed, and the Veteran’s left ankle was placed in a wrap. It was still swollen at that time. The Veteran is competent to report the events and pain related to his in-service left ankle injury. Jandreau, 493 F.3d at 1377. The Board finds the Veteran’s testimony credible and probative because his STRs, which are also competent, credible, and probative, support his testimony. Therefore, the second element is satisfied. Third element: A causal link As to the third element of service connection, a causal link between the Veteran’s current left ankle disability and in-service injury, the Board finds the weight of the evidence is against finding a causal link. The Veteran was afforded an in-person VA examination in October 2019. The examiner opined that the Veteran’s current left ankle disability was less likely than not incurred in or caused by his in-service left ankle sprain. The examiner reasoned that the Veteran’s 1976 enlistment examination noted normal feet and denial of any joint issues or feet trouble. On January 16, 1992, when he had his cast removed, the medical professional reported that his in-service left ankle sprain was “resolving.” During his October 2019 VA examination, the Veteran reported that he was prone to rolling his left ankle since his in-service injury and had a loss of range of motion. The examiner, however, observed that the Veteran’s December 1998 release-from-active-duty (RAD) examination did not note that the Veteran had any medical issues, to include his lower extremities and feet. In addition, the examiner observed that in the Veteran’s accompanying report of medical history (ROMH), he denied joint and feet issues. Finally, in a June 2016 VA primary care physician note, the Veteran was noted to have full range of motion of multiple joints, including his ankles. Based on the relevant medical and lay evidence, the examiner concluded that the Veteran’s current left ankle disability was not a chronic condition; that is, it was not a disability that was continuous since his in-service injury. Absent evidence to the contrary, the Board finds the October 2019 VA examiner was competent to exam and diagnose the Veteran’s left ankle disability, and the examiner was competent to render a medical opinion on the etiology of the disability. Cox, 20 Vet. App. at 569. The Board finds the examiner credible and her medical opinion and rationale the most probative evidence of record on the subject of a causal link. The examiner’s medical opinion was based on a thorough in-person examination, accurate factual history, consideration of the Veteran’s medical records and lay statements, and she relied on her medical training and expertise to form a well-reasoned medical judgement. The Board finds no evidence in the records contradicting the examiner’s medical opinion. (Continued on the next page)   The Board acknowledges the Federal Circuit has held that lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson, 581 F.3d at 1316. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran if the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). While the Board finds the Veteran competent to report his lay observations and sensations associated with his left ankle disability, without evidence showing that he has the necessary medical training or expertise, he cannot competently opine that his left ankle disability was caused by his in-service injury in this particular case. See 38 C.F.R. §§ 3.159(a)(1)–(2); Jandreau, 492 F.3d at 1377. Therefore, the Board finds the third element is not satisfied. Accordingly, the Veteran is not entitled to service connection for his left ankle disability. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.