Citation Nr: 1024893 Decision Date: 07/02/10 Archive Date: 07/09/10 DOCKET NO. 10-04 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for prostate cancer as a result of exposure to herbicides. 2. Entitlement to service connection for a skin cancer. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Young INTRODUCTION The Veteran had active military duty from July 1961 to July 1963. He also had a period of active duty training in the United States Marine Corps Reserve from November 1957 to May 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In April 2010, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO. A copy of the hearing transcript is associated with the claims folder and has been reviewed. In addition, in April 2010, the Veteran submitted additional information directly to the Board, with a waiver of initial RO consideration of the additional information. This additional information is accepted for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2009). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's assertions of in-service exposure to herbicides at Camp Pendleton are credible and consistent with the circumstances of his service; the evidence supports a finding that the Veteran's prostate cancer is related to service. 2. The preponderance of the evidence does not demonstrate a causal relationship between the Veteran's skin cancer and his active military service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for prostate cancer as a result of herbicides exposure have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). 2. A skin cancer was not incurred or aggravated in active military service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159 (2009). In correspondence dated May 2008 the Veteran was provided with the information and evidence necessary to substantiate his claim. Specifically, the RO notified the Veteran of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. The RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2009). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claim, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In that same correspondence the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notwithstanding the May 2008 notice with regard to the Veteran's claim for service connection for prostate cancer as a result of exposure to herbicides, the Board finds that no undue prejudice to the Veteran is evident by a disposition by the Board herein, as the grant of service connection for prostate cancer as a result of exposure to herbicides is a complete grant of the benefits sought on appeal. See Bernard v. Brown, 4 Vet. App. 384 (1993); see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2009) with regard to his claim for service connection for a skin cancer. All identified and available service personnel, treatment records and medical examination reports, and VA and private treatment records, have been secured. The Veteran submitted an investigative report from the Department of the Navy and various articles related to herbicides and other contaminants during the Vietnam era directly to the Board (with a waiver as described above) and such data has been associated with the claims folder. The Veteran has not been accorded a VA examination pertinent to his claim of service connection for skin cancer. With respect to such claim, an examination for the purpose of obtaining a nexus opinion is not needed. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent evidence of diagnosed disability or symptoms of disability; establishes that the Veteran experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no competent evidence that skin cancer emanates from service. The Veteran has not claimed and the record does not show that it had its onset in service or within the first post service year. Furthermore, there is no competent evidence that skin cancer may be associated with any incident in service. Since there is no evidence indicating a nexus between skin cancer and service, the Board finds that an etiology opinion is not "necessary." See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board notes that multiple attempts were made to the service department to verify the use of herbicide agents at Camp Pendleton during the Veteran's service at that military base from July 1961 to July 1963. The Marine Corps responded indicating that such records do not exist. VA Office of Public Health and Environmental Hazards was also contacted and they also could not verify exposure to herbicide agents. Further, the United States Army and Joint Service Records Research Center (JSRRC) were unable to document or verify that the Veteran was exposed to herbicides while stationed at Camp Pendleton. Given the above facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A(a)(2). II. Service Connection Claims In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As for statutory presumptions, service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1131, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Prostate cancer can be service- connected on such a basis. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non- exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. If a Veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and manifests prostate cancer to a degree of 10 percent or more at any time after service, the Veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1137; 38 C.F.R. § 3.307, 3.309(e). The Veteran contends that he was exposed to herbicide agents in service. The record is clear that the Veteran did not serve in Vietnam. The Veteran instead claims exposure due to service at Camp Pendleton, California from 1961 to 1963. Since the record shows and the Veteran does not dispute that he had no service in Vietnam, the presumption of exposure to herbicides does not apply. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, in such a case, presumption is not the sole method for showing causation. To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In this case, the record shows that the Veteran has been treated for prostate cancer, therefore whether the Veteran has prostate cancer is not at issue. A. Prostate Cancer The Veteran submitted documentation that tends to corroborate his assertion of exposure to herbicide agents while at Camp Pendleton from 1961 to 1963. The Veteran has submitted a copy of a report by the Department of the Navy addressed to officials of the California Environmental Protection Agency and the United States Environment Protection Agency, the subject being "Final Investigation Report for 21 Area and Camp De Luz, MCB Camp Pendleton, CA[.]" The report was generated following a Freedom of Information Act request to United States Marine Corps, Naval Facilities Engineering Command and United States Environmental Protection Agency regarding use of chemicals at Camp Pendleton to support a claim by a Vietnam Veteran. (Report, p. 1). The report documents field activities and analytical laboratory results obtained in accordance with the Final Discovery Sites Work Plan. (Report, p. 1). Work was conducted at seven locations at 21 Area and Camp de Luz. 21 Area, Location 4, is an area located in the central portion of the 21 Area. Personal accounts of historical operations indicated this area was used as a maintenance facility, and that operations included lawnmower repair, weed control, herbicide/pesticide storage and mixing, spray rigs, fertilizers, and use of diesel fuel. The chemicals of potential concern (COPC) at 21 Area, Location 4 included chlorinated herbicides, organochlorine pesticides, and dioxins/furans. (Report, p. 6). It was concluded that based on calculated toxicity equivalents, dioxins/furans concentrations exceed the residential soil Regional Screen Levels at location 4 in boring in the surface soil sample. Historical operations included herbicides and pesticides storage and mixing. "Herbicides are known to contain dioxins and furans (Harte et. al., 1991; Hay, 1982) and are likely responsible for the reported dioxins/furans concentrations in shallow soil at [Location 4]." (Report, p. 8). According to personal accounts of historical operations at 21 Area, Location 6, a area located west and northwest of the baseball field and running track along the chain link fence that separates the developed recreational area and the undeveloped brush covered slopes leading down to the saltwater slough, this area was used as an unofficial disposable area for wax removal chemicals, paint/dye stripping chemicals, and red concrete dye. The COPCs used included total petroleum hydrocarbons, volatile organic compound, and metals. (Report, p. 7). Service personnel records show that for the period from July 18, 1961 to July 5, 1963 the Veteran was stationed at Marine Corps Base, Camp Pendleton and attached to "Base Mat. Co., Base Mat. Bn. 1st FSR, FMF." His DD-214 shows his military occupation specialty as supply administration clerk during that period. In his record of service for that period his primary duties are listed as storage division, mess man, unit stock man, and supply administration clerk. At his Board hearing the Veteran testified that his military occupation specialty was supply administration clerk but because he was a low-grade enlisted man he ended up basically being a warehouse man. He worked in "Area 24," which contained huge warehouses and outside storage facilities for chemicals. Hearing Transcript (Tr.), p. 4. The Veteran stated that he used the chemical "Agent Orange" to take cosmoline, dirt and plastic off of weapons, and as a "parts cleaner." He stated that dioxin or Agent Orange would also remove paint. Tr., pp. 5-6, 9, 16. The Veteran reported that Area 24 was for redistribution and disposal, "it was like a junkyard." "Gear" would be evaluated and if it was determined that it was fixable, then he would fix it, but if it could not be fixed, it would be sent to the junkyard and he would have to clean it. Tr., p. 16. The Veteran stated that he identified Agent Orange by the orange top or stripe on the barrel and he loaded barrels to be shipped overseas to Okinawa, Kadena, Vietnam, Saigon, Tan Son Nhut Air Base and Camp Chinen. Tr., pp. 17-18. Resolving all doubt in the Veteran's favor, the Department of the Navy report submitted by the Veteran tends to corroborate his claim that he was exposed to dioxin and other herbicide agents while serving at Camp Pendleton. The Board finds the report by the Department of the Navy to be probative because it is the result of an official investigation by the Department of the Navy that specifically addresses the question of whether there were contaminants present at Camp Pendleton in the 1960's. The Board finds that the Veteran's assertions of in-service exposure to herbicides at Camp Pendleton are credible and consistent with the circumstances of his service. The evidence shows that the Veteran was assigned duties as a unit stockman in the storage division at Camp Pendleton in the 1960's and the Department of the Navy report indicates that 21 Area, Location 4 was a maintenance facility and that operations included, herbicide and pesticides storage and mixing. The Department of the Navy found that herbicides were present at Camp Pendleton and the Veteran's description of experiences at Camp Pendleton tend to support his claim of exposure to those herbicides. Resolving all doubt in the Veteran's favor, service connection for prostate cancer as a result of exposure to herbicides is granted. B. Skin cancer The Veteran essentially contends that he has melanoma and basal cell carcinoma related to service. He testified at his Board hearing that he has not been told that the melanoma was due to exposure to Agent Orange. He stated that "they don't really know where it came from" but "I get what dermatologists here call...barnacles." He disclosed that he has probably had twenty removed and do not know if they were melanomas or carcinomas; and one was dug from his shoulder not too long ago. Tr., pp. 22-24. He testified that it was about 1999 that he first started having trouble. He stated that he went to the doctor for another matter and a growth was discovered on his ear, which was carcinoma and not a melanoma. Tr., p. 23. The Veteran's service treatment records are unremarkable for any complaints, findings, or diagnosis of, or pertaining to, melanoma, carcinoma, or a skin disorder of any kind. However, a May 2003 post-service private treatment note reflects that the Veteran was referred for surgery for a basal cell carcinoma of the left medial canthus. The assessment was basal cell carcinoma. A February 2007 VA clinical report indicated the Veteran had malignant melanoma in-situ, lentigo maligna type. Microscopic examination by VA in September 2007 reveals a diagnosis of skin lesion, left upper shoulder, excision: dermal scar with no evidence of residual malignancy. The Veteran had a visit with a VA primary care physician in June 2008. The examination was negative for skin rash, with that being the only finding regarding the skin on examination. However, the assessment, in pertinent part, was melanoma of skin, malignant melanoma in-situ and basal cell carcinoma. A July 2008 VA dermatology clinic note notes the Veteran's history of melanoma in situ, lentigo maligna type, status post wide excision in April 2007 with closely approximated lateral margin, re- excision September 2007 biopsy, which showed only scar. Also noted was history of multiple basal cell carcinomas. Further, it was noted that the Veteran was there to check out a brown spot on his left upper chest, a white spot on his right shoulder and an "irritable" spot on the left nose, all of which seemed to have cropped up in the last six months. Examination of the skin showed a well-healed scar on the left shoulder without sign of recurrence, a brown waxy stuck-on plague on the left upper chest, a waxy white stuck-on plague on the right shoulder, red, rough, scaly papule 3 mm on the left nasal sidewall and no other lesions of concern. The diagnosis/assessment was history of melanoma, lentigo maligna type, status post excision in April 2007 with closely approximated borders, re-excision September 2007 biopsy showing only scar, no sign of recurrence, history of basal cell carcinoma with no sign of new basal cell carcinoma, actinic keratosis left nasal sidewall and benign seborrheic keratosis of the left upper chest, and right shoulder. VA progress note dated June 2009 reveals the Veteran had a history of basal cell carcinoma removal from the eye and ear and a history of melanoma. The Board notes, initially, that evidence of current disability is a fundamental requirement for a grant of service connection. See McClain v. Nicholson, 21 Vet. App. 19, 321 (2007) (citing Gilpin v. West, 155 F.3d 1353 (F.3d 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997)). In McClain, the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Id. at 321. There is competent evidence that the Veteran has exhibited skin cancer following service and has current residuals. Regarding continuity of symptoms, the Veteran does not claim to have experienced continuous skin problems since active duty. By his own testimony he indicated that his skin cancer started around 1999. Post-service medical records do not demonstrate complaints or findings indicative of a skin cancer until May 2003. Moreover, he did not raise a claim for a skin disability until 2008, well over four decades following his tour of active military service. Therefore, continuity of symptomatology has not been shown here, either by the clinical record or by the Veteran's own statements. Additionally, there is no evidence of any complaints, findings, or diagnosis of skin cancer within a year after separation from service. Because the Veteran's skin cancer was not manifested to a compensable degree within the first post service year, there is no rebuttable presumption of service incurrence afforded to certain chronic diseases, to include malignant tumors. 38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. Moreover, there is no competent evidence or opinion suggesting a medical nexus between any skin cancer and the Veteran's service. Neither can a skin cancer be presumed as due to in- service herbicide exposure. Neither the Veteran nor his representative have claimed, presented or identified any evidence or opinion that a skin cancer is due to herbicide exposure. In fact, at his Board hearing the Veteran stated that no doctor had told him that the melanoma was due to exposure to Agent Orange and that they do not really know where it came from. Tr., p. 22. As discussed above, skin cancer is not a presumptive disease for those exposed to herbicides. See C.F.R. §§ 3.307, 3.309. The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for other disabilities, including melanoma, basal cell and other skin cancers. The National Academy of Sciences, after reviewing pertinent studies, did not feel that the evidence warranted altering its prior determination that there was inadequate or insufficient evidence of an association between exposure to herbicide agents and the subsequent development of skin cancer. See Notice, 72 Fed. Reg. 32395, 32397 (2007). Notwithstanding the Veteran's assertion that his skin cancer began many years following service, he believes he has a skin cancer that is related to his exposure to herbicides in service. To the extent that the holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) can be interpreted to enable a lay person to speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg, the question of causation here involves a more complex relationship that the Veteran is not competent to address. In Jandreau, 492 F.3d 1372 the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Whether lay evidence is competent and sufficient in a particular case is a factual issue. This is not a case where lay testimony can provide a nexus between events in service and current disability. It is not readily apparent even to highly trained clinicians what diseases are due to herbicide exposure, and the Veteran has not established that he is competent to supply a nexus opinion in this instance. The criteria set forth under Jandreau have not been satisfied, precluding the Veteran's statements from constituting competent evidence of a nexus. Based on the foregoing, the claim of entitlement to service connection for a skin cancer must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for prostate cancer as a result of exposure to herbicides is granted. Service connection for a skin cancer is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs