Citation Nr: 1540252 Decision Date: 09/18/15 Archive Date: 10/02/15 DOCKET NO. 05-12 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for squamous cell carcinoma, to include as due to in-service herbicide exposure. 2. Entitlement to service connection for dermatitis, to include as due to in-service herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Sorisio, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to June 1968. These matters are before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). The claims were originally before the Board on appeal from an October 2004 rating decision of the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO). The case was previously remanded by the Board for further evidentiary development in December 2008, January 2011, and June 2012. In September 2013, the Board denied service connection for malignant melanoma, basal cell carcinoma, actinic keratosis, seborrheic keratosis, and benign neoplasms of basal cell epithelioma, but remanded entitlement to service connection for squamous cell carcinoma and dermatitis. In January 2014, the Board denied service connection for squamous cell carcinoma and dermatitis. The Veteran appealed the January 2014 decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2014 Order, the Court vacated the Board's January 2014 decision and remanded the case to the Board for development consistent with a Joint Motion of the Parties (Joint Motion). In February 2015, the Board remanded the issues for further development in accordance with the Joint Motion. In July 2015 written argument, the Veteran's representative waived initial Agency of Original Jurisdiction (AOJ) review of additional evidence added to the record since the May 2015 supplemental statement of the case. In July 2015 written argument, the Veteran's representative contended that service connection for basal cell carcinoma and malignant melanoma is warranted based on a June 2015 letter from the Veteran's private physician, Dr. R.P.F. However, as noted above, the issue of service connection for skin cancers, diagnosed as malignant melanoma and basal cell carcinoma, was denied by a September 2013 Board decision. The Veteran did not appeal that decision to the Court. Therefore, the decision is final. 38 C.F.R. § 20.1100 (2015). The current appeal before the Board is limited to service connection for squamous cell carcinoma and entitlement to service connection for malignant melanoma and basal cell carcinoma will not be further addressed in this decision. July 2015 written argument from the Veteran's representative along with a June 2015 letter from private physician, R.P.F., raise the matters of whether new and material evidence has been received to reopen a claim of entitlement to service connection for skin cancer, diagnosed as malignant melanoma and basal cell carcinoma. Effective March 24, 2015, when a claimant submits a communication indicating a desire to apply for VA benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.150(a). 79 Fed. Reg. 57,660, 57,695 (Sept. 25, 2014) (to be codified at 38 C.F.R. § 3.155(a)). When such a communication is received, VA shall notify the claimant and the claimant's representative of the information necessary to complete the application form or form prescribed by the Secretary. Id. The Veteran's representative's July 2015 written argument indicates a desire to apply for VA benefits for skin cancer, diagnosed as malignant melanoma and basal cell carcinoma, but does not meet the standards of a complete claim for benefits. Since the Board does not have jurisdiction over this matter, it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's squamous cell carcinoma is causally related to exposure to herbicides and sun in Vietnam. 2. The Veteran's dermatitis did not manifest during his military service and is not otherwise related to an event or injury in service, to include herbicide or sun exposure during service. CONCLUSIONS OF LAW 1. The criteria for service connection for squamous cell carcinoma have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 2. The criteria for service connection for dermatitis have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. For the claim of service connection for squamous cell carcinoma, the Board finds that VA has substantially satisfied the duties to notify and assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of this claim given the favorable nature of the Board's decision. Regarding the claim of service connection for dermatitis, the Veteran was advised of VA's duties to notify and assist in the development of the claim. While he did not receive complete notice prior to the initial rating decision, March 2006 and January 2009 letters provided certain essential notice prior to the readjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A May 2004 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. March 2006 and January 2009 letters also informed the appellant of disability rating and effective date criteria. December 2009, February 2012, June 2013, November 2013, and May 2015 supplemental statements of the case (SSOCs) readjudicated the matter after the appellant and his representative responded and further development was completed. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim). The duty to assist has also been met. VA has obtained, to the extent possible, all relevant evidence identified by the Veteran and necessary for an equitable resolution of the issue on appeal. The Veteran has identified records for treatment of skin disorders at the Allen Park VA Medical Center (VAMC) from 1970 through January 1997, which have not been located and associated with the file. The AOJ issued a Formal Finding of Unavailability in June 2013 for the records and informed the Veteran of the unavailability of the records in May 2013. The Veteran has indicated that he does not have these records in his possession. Regarding whether there was substantial compliance with the Board's prior remand directives, the AOJ made all necessary attempts to obtain records from the Allen Park VAMC and notified the Veteran of VA's inability to obtain these records. 38 C.F.R. § 3.159(e). Other identified private and VA records were obtained and associated with the Veteran's claims file. The AOJ scheduled the Veteran for VA examinations in October 2013 and April 2015. The October 2013 VA examination was inadequate for evaluation purposes. However, the April 2015 VA examiner completed all necessary testing and examined the Veteran, reviewed his claims file, and provided pertinent information regarding the etiology of the Veteran's dermatitis. Therefore, the April 2015 VA examination is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board thus concludes that there was substantial compliance with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to the claim of service connection for dermatitis. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Legal Criteria - Service Connection Generally, in order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Pertinent law and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period starting on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). The last date on which a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during this period. Id. If a Veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease, generally manifested to a degree of ten percent or more at any time after service, the Veteran is entitled to a rebuttable presumption of service connection even though there is no record of such disease during service. 38 C.F.R. §§ 3.307, 3.309(e). Presumptive service connection is warranted for the following disorders: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). VA has determined there is no positive association between exposure to herbicides and any other condition for which VA has not specifically determined that a presumption of service connection is warranted. See, e.g., Notice, 70 Fed. Reg. 20,308 (Apr. 11, 2014). When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service, to include as based on exposure to herbicides. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). III. Analysis A. Squamous Cell Carcinoma The record contains a December 2009 histopathology report from Dermatology Associates of Oak Ridge that reflects a finding of squamous cell carcinoma of the right forearm. Therefore, the first element of the claim of service connection has been met. Service personnel records reflect the Veteran served in the Republic of Vietnam from June 1967 to June 1968. He is thus presumed to have been exposed to an herbicide agent during service, and the second element of the claim of service connection has been met. The Veteran is not entitled to service connection for squamous cell carcinoma on a presumptive basis, since the disability is not among those enumerated in the herbicide presumption regulations. See 38 C.F.R. § 3.309(e). Thus, the presumption of service connection due to herbicide exposure is not for application. The Board must next consider whether the evidence demonstrates that squamous cell carcinoma was actually incurred in service, to include as based on exposure to herbicides. Combee, 34 F.3d at 1042. A June 2015 letter from the Veteran's private physician, Dr. R.P.F., at Dermatology Associates of Oak Ridge, notes that the physician had seen the Veteran many times over the years with the development of malignant melanoma and basal cell skin cancers. The Veteran had informed Dr. R.P.F. that he was exposed to herbicides in Vietnam. Dr. R.P.F. explained that he had treated many other patients in the past who were exposed to herbicides. He noted that these patients developed many more skin cancers than he would expect from the amount of sun damage they had incurred. He opined that although there was no definitive proof that herbicides cause skin cancers, it was his experience that exposure to herbicides was definitely a factor in the development of skin cancers. He stated that he believed the Veteran fit into this group. The Board places substantial weight of probative value on this opinion. It thoroughly explains the reasoning for the conclusions reached, thus, allowing the Board to make a fully informed evaluation of the underlying medical issues. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). It takes into consideration the Veteran's exposure to herbicides and the physician's medical experience in treating patients with different types of skin cancer and the various factors that can cause skin cancer. Although this opinion does not specifically note the Veteran's diagnosis of squamous cell carcinoma, the December 2009 histopathology report that diagnosed squamous cell carcinoma of the right forearm was ordered by Dr. R.P.F. Thus, the Board resolves any reasonable doubt in the Veteran's favor and finds that Dr. R.P.F. was aware such a diagnosis had been made and that his opinion regarding the relationship between skin cancers and herbicide exposure was intended to address the etiology of the squamous cell carcinoma. The Board acknowledges that the record includes October 2013 and April 2015 negative nexus opinions from VA clinicians. However, these opinions are of limited probative value for the following reasons. The October 2013 VA examiner concluded that the Veteran did not have squamous cell carcinoma, even though the record reflects that he has had it during the appeal period. Additionally, the examiner's rationale relies on the fact that skin cancer is not a presumptive condition. Regarding the April 2015 VA examination, although the examiner indicated that medical literature did not determine a causative relationship between squamous cell carcinoma and herbicide exposure, her conclusion also appears to largely be based on the fact that squamous cell carcinoma is not a presumptive condition. The Board notes that under the law the fact that a disorder is not listed as a presumptive disorder does not preclude establishing service connection through other means such as a medical opinion. In addition, the Board notes that sun exposure is a well-known risk factor for developing squamous cell carcinoma. In a March 2014 statement, the Veteran reported that most of his sun exposure was when he was in Vietnam. He stated that he spent his entire post-service career working inside a factory. Hence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's squamous cell carcinoma is related to exposure to herbicides and sun during service. Affording the Veteran the benefit of the doubt, service connection for squamous cell carcinoma is granted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Dermatitis The record contains a September 2012 record from Dermatology Associates of Oak Ridge that reflects a diagnosis of dermatitis, unspecified, of the face. Therefore, the first element of the claim of service connection for dermatitis has been met. As noted in the above analysis, the record establishes the Veteran served in Vietnam from June 1967 to June 1968; thus, he is presumed to have been exposed to herbicides during that service. Dermatitis is not among the disabilities enumerated in the herbicide presumption regulations. See 38 C.F.R. § 3.309(e). Therefore, the presumption of service connection due to herbicide exposure does not apply in this case. The Board will next consider whether the evidence demonstrates that dermatitis was actually incurred in service, to include as based on exposure to herbicides. Combee, 34 F.3d at 1042. The Veteran has also alleged that dermatitis is related to sun exposure during his service in Vietnam. Specifically, in a March 2014 statement, the Veteran reported that most of his sun exposure was when he was in Vietnam. He stated that he spent his entire post-service career working inside a factory. He also indicated that the October 2013 VA examiner told him he thought his skin conditions resulted from sun exposure. The Veteran's service treatment records (STRs) contain no complaints, diagnoses, or treatment for any skin disorder during service, including dermatitis. The June 1968 separation examination report reflects that the Veteran's skin was clinically evaluated as normal. In his self-reported history, the Veteran did not indicate ever having any skin diseases. The Veteran was afforded a VA examination for skin conditions in February 1997. At that time, he reported that he had no problems with his skin until two years after military service, in about 1970, when he began having intermittent skin rashes. The Veteran was afforded a VA examination to assess the etiology of dermatitis in October 2013. The examiner noted that the Veteran was interviewed and his claims file had been reviewed. The Veteran reported having no memory of skin problems while in service, and stated that he could not remember when he began to develop benign skin lesions. The examiner noted photographs from 2012 demonstrating a widespread rash with the appearance of atopic eczema, which the Veteran said had been present for eight months. The examiner also noted that the rash was not present at the time of the examination. The examiner indicated that the Veteran had not experienced dermatitis, despite the Veteran's file containing a September 2012 private treatment record listing a diagnosis of dermatitis. The October 2013 VA examiner opined that it was less likely than not that the Veteran's claimed skin disabilities were incurred in or caused by service. The examiner commented on their possible relationship to exposure to Agent Orange, and explained that the VA website lists only chloracne and various soft tissue sarcomas as being related to dioxin exposure, and the Veteran had not experienced any of those conditions. There was, therefore, no scientific evidence linking the Veteran's exposure to dioxin and his skin conditions. The examiner also provided an opinion that the Veteran's skin conditions were not directly related to his military service, because the Veteran reported not having a skin disorder until two years after service. The Board places little weight of probative value on the October 2013 VA examiner's opinion. The examiner's opinion was in part based on a conclusion that the Veteran did not have dermatitis, even though such had been shown during the appeal period. Furthermore, the examiner's rationale appears to be based on a finding that dermatitis was not a presumptive condition, rather than addressing whether there was proof of actual or direct causation, to include as based on herbicide exposure. Pursuant to the Board's February 2015 remand, the Veteran appeared for another VA examination in April 2015 to assess the etiology of dermatitis. The examiner indicated the Veteran was interviewed and that his claims file was reviewed. She noted the September 2012 diagnosis of dermatitis and the Veteran's history that dermatitis waxed and waned. She concluded that the Veteran's dermatitis was less likely than not incurred in or caused by the Veteran's service, including exposure to herbicides. She explained that the dermatitis diagnosed in September 2012 was noted to be a hypersensitivity to shaving. She indicated that dermatitis had resolved by the time she saw the Veteran for examination in April 2015. She concluded that dermatitis was not a condition that arose from either sun exposure or herbicide exposure, because it had been shown to be a hypersensitivity to shaving. The Board places substantial weight of probative value on this medical opinion. The examiner described the diagnosed dermatitis in sufficient detail and thoroughly explained the reasoning for the conclusions reached, thus, allowing the Board to make a fully informed evaluation of the underlying medical issues. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). In explaining that dermatitis was not caused by sun exposure or herbicide exposure, she provided an alternative etiology for the condition of it being related to shaving hypersensitivity. The September 2012 private treatment record from Dermatology Associates of Oak Ridge provides support for her conclusion as it shows the Veteran complained of irritation to his cheeks when shaving or touching his face with his hand. The treating physician indicated that he was switching the Veteran to a different cleanser, shave gel, and lotion. The Veteran was told to return to the clinic if the irritation worsened. The record does not reflect any further treatment for the condition. The record does not contain any probative contradictory medical opinion regarding the etiology of dermatitis. The only evidence linking the Veteran's dermatitis to his military service and in-service herbicide or sun exposure is the Veteran's own lay contentions. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran, however, is not competent to testify that his dermatitis was caused by his service. This disability is not a simple medical condition that can be causally related to active service, including based on exposure to herbicides and the sun, without medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Veteran's statements regarding etiology do not constitute competent evidence on which the Board can make a service connection determination. The Board also acknowledges the Veteran's contention that the October 2013 VA examiner indicated his belief that the Veteran's skin conditions were related to sun exposure. However, the report of the October 2013 VA examination does not provide such an opinion. Although the examiner may have initially indicated this belief to the Veteran, the examination report does not contain such an opinion and was completed after a review of the evidence and completion of any additional research. Therefore, it does not appear that the examiner ultimately reached a conclusion that dermatitis was due to sun exposure and the Board places little weight of probative value on the Veteran's statements that the October 2013 VA examiner indicated there was such an etiology. The Board turns next to whether dermatitis is directly related to the Veteran's service. As noted above, the Veteran's June 1968 separation examination reflects that the Veteran's skin was clinically evaluated as normal. The Veteran did not indicate ever having any skin diseases, in his self-reported history. There is no indication that dermatitis began in service or is otherwise related to the Veteran's service, nor has the Veteran so alleged. Therefore, a preponderance of the evidence is against the theory of entitlement that dermatitis is related to the Veteran's service, including as based on herbicide or sun exposure. In summary, the claim of service connection for dermatitis is denied based on consideration of presumptive and direct service connection theories of entitlement. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim for service connection for dermatitis, the benefit-of-the-doubt rule is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for squamous cell carcinoma is granted. Service connection for dermatitis is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs