Citation Nr: 1754142	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-39 007	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for a skin disability, to include melanoma.

2.  Entitlement to service connection for a low back disorder.

3.  Entitlement to service connection for left wrist carpal tunnel syndrome (CTS).

4.  Entitlement to service connection for right wrist CTS.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. J. Drucker, Counsel


INTRODUCTION

The Veteran had active military service from December 1957 to December 1960.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a low back disorder, bilateral wrist CTS, and myeloma.

After the 2013 rating decision, the Veteran clarified that his claim was for melanoma, not myeloma, and service connection for melanoma was considered by the RO in an October 2016 supplemental statement of the case (SSOC).  See 8/6/14 VBMS Third Party Correspondence.

In February 2017, the Veteran testified during a hearing before the undersigned Veterans Law Judge that was conducted by videoconference.  A transcript of the hearing is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2014).

The issues of entitlement to service connection for CTS of the left and right wrists and a low back disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).






FINDING OF FACT

The weight of the evidence shows that the Veteran's current skin disorder, diagnosed as melanoma and non-melanoma skin cancers and actinic keratoses, had its onset during active military service.


CONCLUSION OF LAW

The criteria for service connection for a skin disability, diagnosed as melanoma and non-melanoma skin cancers and actinic keratoses, have been met.  38 U.S.C. § 1131 (West 2014); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits."  Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54).

Contentions

The Veteran asserts that he developed melanoma due to sun exposure while stationed in Imperial Beach, California, and in Guam.  See 2/2/17 VBMS VA 21-4138 Statement in Support of Claim.  He was fair-haired and blue-eyed in service and wore a hat and tee-shirt while in Guam.  See February 2017 Board hearing transcript at page 15.  The Veteran's work schedule in Guam allowed him to be off for three days in a row, that provided a good amount of time in the strongest sunlight.  Id. at 20-22.  After discharge, the Veteran worked indoors as a postmaster in a small post office.  Id. 4.  He had melanoma twice on his back, was treated for multiple melanomas between 2012 and 2016, and had a squamous cell on his hand.  Id. at 17-18, 24.  

Legal Criteria

A veteran is entitled to compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.

Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303 (b); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a)).

To establish service connection, evidence must show: "(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" - the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Certain chronic diseases, such as malignant tumors, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service.  See 38 U.S.C. §§ 1101, 1131, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017).  For such chronic diseases under 38 C.F.R. § 3.309(a), an award of service connection can be permissible solely on the basis of lay evidence of continuity of symptomatology.  Walker v. Shinseki, 708 F.3d at 1331.

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, (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.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Service connection may 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).

Analysis

A current diagnosis of a skin disorder, melanoma in situ of the right mandible, is noted in August 2012 private medical reports.  See 4/11/16 VBMS Medical Treatment Record Non Government Facility, pages 1, 11, 13, 22.  Hypertrophic solar keratosis of the left dorsal hand was also diagnosed in August 2012.  Id. at 23.  Lentigo/lentigo maligna is noted in a February 2013 private dermatology report that also shows actinic keratoses of the right eyebrow, face, hands, right ear, and right shoulder.  See 4/11/16 VBMS Medical Treatment Record Non Government Facility, page 9.  Melanoma of the lateral (left) face is noted in October 2012, and February and March 2013 records.  Id. at 3, 5, 9, 22.  Melanoma and squamous cell carcinoma in the left cheek are reported in March 2013.  8/19/13 VBMS Third Party Correspondence.

Actinic keratosis, described as a pre-cancerous lesion, is noted in December 2016, when a past medical history of melanoma, basal cell carcinoma, and squamous cell carcinoma, is reported.  See 2/2/17 VBMS Medical Treatment Record Non Government Facility, pages 4-5.  

The remaining questions are whether there was a disease or injury in service and whether there is a link between the current disability and the in-service disease or injury.

The Veteran's service records show that he took a training course at Imperial Beach, California.  See 4/2/12 VBMS Certification of Release or Discharge from Active Duty (DD 214).  A February 1959 service treatment record documents his presence in Guam.  See 7/26/13 STR-Medical, page 5.

Service treatment records do not reference complaints or diagnosis of, or treatment for, a skin disability.

The post service medical evidence includes private medical records showing that, in 1997 and 2005, the Veteran was surgically treated for melanoma of the back.  See 1/25/15 VBMS Medical Treatment Record Non Government Facility, pages 4, 6; 3/21/16 VBMS Medical Treatment Record Non Government Facility, page 6; 3/5/16 VBMS Medical Treatment Record Non Government Facility, page 1; 4/11/16 VBMS Medical Treatment Record Non Government Facility, page 30.  See also 8/12/13 VBMS Medical Treatment Record Non Government Facility (both sets), pages 6, 37

A past medical history of actinic keratosis (pre-cancerous lesions), melanoma, basal cell carcinoma, and squamous cell carcinoma is noted in a December 2013 private dermatology record that shows the Veteran had additional melanoma surgeries in 2012 and 2013.  See 3/5/16 VBMS Medical Treatment Record Non Government Facility, page 1.  

The medical evidence includes statements from two dermatologists and a physician that support the Veteran's claim.

In February 2016, R.K.A., M.D., a family practitioner, opined that the time the Veteran spent with sun exposure in his youth, much of which occurred while in the service of his country, along with his fair, light skinned complexion, likely contributed to the melanoma cancers he had.  See 3/7/16 VBMS Third Party Correspondence.

In February and March 2016, H.W.B ., M.D., a dermatologist, noted that the Veteran served in the US Navy at Imperial Beach, California, which is 5 miles from Mexico, from March to September 1958.  See 3/7/16 VBMS Third Party Correspondence; 3/4/16 VBMS Buddy/Lay Statement.  The physician observed that the Veteran then served the next 18 months on the island of Guam.  The average temperature in Guam was 88 degrees, year round, and it had significant sun exposure.  Dr. H.W.B. stated that the Veteran had Fitzpatrick type-1 skin; therefore, the Veteran rarely tanned and usually burned with significant sun exposure.  In the physician's opinion, the Veteran's sun exposure contributed to his numerous melanomas, squamous cell skin cancers, and basal cell carcinomas.  The Veteran also continued to have actinic keratoses and skin cancers that needed to be treated.  The dermatologist stated that the Veteran willingly served our country and subsequently had numerous cancers due to his exposure while in service.

In January 2017, S.N.H., M.D., a dermatologist, stated that the Veteran had a long history of melanoma and non-melanoma skin cancers and actinic keratoses.  See 2/2/17 VBMS Medical Treatment Record Non Government Facility, page 1.  According to Dr. S.N.H., these conditions were ultra violet (UV)-induced and exacerbated and can continue to develop years after exposure.  The physician noted that the Veteran's military assignments were in areas with constant intense UV exposure: Southern California and Guam.  Dr. S.N.H. opined that the Veteran's intense UV exposure during his military commitment contributed to his multiple melanoma and non-melanoma skin cancers. 

The Veteran has provided competent statements of continuous sun exposure while stationed in Guam and Imperial Beach while on active service and no excessive sun exposure since discharge.  Jandreau v. Nicholson, 492 F.3d at 1376-77.  His statements in this regard are essentially consistent with the circumstances of his service and the reports he continuously provided physicians from whom he sought treatment of skin symptoms.  See e.g., Rucker v. Brown, 10 Vet. App. 67, 73 (1997); Fed. R. Evid. 803 (4) and Note to Paragraph (4) (indicating that a statement made for purposes of obtaining treatment possesses inherent credibility in light of a claimant's strong motivation to be truthful); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (holding that the Federal Rules of Evidence are important, guiding factors that may be used by VA adjudicators in evaluating the probative value of a medical opinion).  The Board finds the Veteran's statements to his treatment providers and the medical records of his treatment during the appeal period highly probative.

There are no specific service treatment records regarding the Veteran's skin.  However, the absence of documented complaints is not dispositive.  In general, the Board may not rely on the absence of evidence as substantive negative evidence, the exception being when there is an evidentiary basis establishing that a fact in question would ordinarily have been recorded in the document or documents in question.  See Horn v. Shinseki, 25 Vet. App. 231, 239 & n. 7 (2012).

Two dermatologists and a family practitioner concluded that the Veteran had a skin type that rarely tanned and usually burned with significant sun exposure.  In the physicians' opinions, the Veteran's sun exposure in service contributed to his melanoma and non-melanoma skin cancers and actinic keratoses.  There is no medical evidence that contradicts the physicians' opinions.

As the weight of the evidence reflects that the Veteran was exposed to extreme sunlight in Guam and Imperial Beach, California, in active service, has a skin disorder, and the only medical opinions of record link the current disability to service, and resolving reasonable doubt in favor of the Veteran, the criteria for service connection for the current skin disorder, diagnosed as melanoma, non-melanoma cancers, and, actinic keratoses, are met.  38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. § 3.303.  Gilbert.


ORDER

Entitlement to service connection for a skin disability, diagnosed as melanoma and non-melanoma skin cancers and actinic keratoses, is granted.





REMAND

Bilateral Wrist CTS

The Veteran attributes the onset of his bilateral wrist CTS to his constant typing of Navy intelligence reports required in his work as a communications technician in service.  See February 2017 Board hearing transcript at page 3.  After discharge, he worked as a postmaster in a small post office for thirty five years that involved some mail sorting that was repetitious work.  Id. at 5.  He first noticed wrist aches and numbness approximately 20 or 25 years earlier.  Id. at 4.  

Private medical records show the Veteran underwent right and left wrist carpal tunnel release in September and December 2016, respectively.  See 2/2/17 VBMS Medical Treatment Record Non Government Facility, pages 8, 10.

Given the above, the Veteran should be afforded a VA examination to determine the etiology of any right or left wrist disability, including a determination as to the likely onset.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009).

Low Back

The Veteran asserts that he developed low back pain while swimming in a pool in Guam in approximately 1959.  See February 2017 Board hearing transcript at page 8.  He went to sick bay and was treated with a heat lamp.  Id.  His back pain continued to the present day.  Id.  The Veteran saw a chiropractor soon after discharge until the clinician died in 1998 and the Veteran found a new provider whose records were submitted.  See 2/2/17 VBMS Correspondence.  The Veteran was told he had a protruding disc.  Id.  His new chiropractor sent him for a magnetic resonance image (MRI) that showed his bottom two vertebrae were protruding.  See February 2017 Board hearing transcript at pages 8-9.

Service treatment records reflect that, in February 1959, the Veteran reported that he hurt his back a week earlier and had pain when leaning backward, for which he was treated with heat.  See 7/26/13 VBMS STR-Medical, page 5.  When examined in November 1960, prior to separation, a spine abnormality was not noted.  Id. at 3.
 
Post service, chiropractic treatment records, dated from December 1998 to March 2016, describe the Veteran's complaints of, and treatment for, low back pain, assessed as "Bal."  See 2/2/17 VBMS Medical Treatment Record Non Government Facility, pages 14-19.

Here, too, the Board concludes that the Veteran should be afforded a VA examination to determine the etiology of any lumbar spine disability, including a determination as to the likely onset.  See McLendon v. Nicholson, 20 Vet. App. at 83; see also Davidson v. Shinseki, 581 F.3d at 1316.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Schedule the Veteran for VA examination(s) to be performed by a physician with expertise in diagnosing lumbar spine and CTS disorders (preferably a surgeon, if available) to determine the current etiology of any current CTS and lumbar spine disorder.  The examiner should note that the claims file, including this remand, were reviewed, and address the following:

a. The examiner(s) should identify all lumbar spine and wrist disorders found, including CTS (any disorder diagnosed since 2012).

b. For any such diagnosed lumbar spine or wrist disorder, the examiner(s) should opine whether it is at least as likely as not that such disorder had its onset in active service or is otherwise the result of a disease or injury in active service.

c. All opinions and conclusions must be supported by a clear rationale.  The examiner(s) is (are) particularly requested to address the Veteran's contention that his bilateral wrist CTS was caused, in some measure, by the constant and repetitive typing he was required to do while in active service.

d. The examiner(s) is (are) advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.  The examiner(s) should state whether there is any medical reason for rejecting his reports.

e. The absence of evidence of treatment for a wrist or lumbar spine disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion.

f. If the examiner(s) is (are) unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered.

2. If any claim on appeal remains denied, the AOJ should issue a supplemental statement of the case before returning the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2014).




______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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