Citation Nr: 0000004 Decision Date: 01/03/00 Archive Date: 12/28/01 DOCKET NO. 95-17 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for arthritis of multiple joints. 2. Entitlement to service connection for skin cancer. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from September 1950 to June 1952. In a rating decision of November 1997, the Regional Office (RO) granted service connection for the residuals of cold injury to the veteran's feet, assigning a 10 percent evaluation for each foot. Accordingly, the issue of entitlement to service connection for immersion foot (cold weather injuries), which was formerly on appeal, is no longer before the Board of Veterans' Appeals (Board). This case was previously before the Board in July 1998, at which time it was remanded for additional development. The case is now, once more, before the Board for appellate review. FINDINGS OF FACT 1. The claim for service connection for arthritis of multiple joints is not supported by cognizable evidence showing that this disability was present in service, or is otherwise of service origin. 2. The claim for service connection for skin cancer is not supported by cognizable evidence showing that this disability was present in service, or is otherwise of service origin. CONCLUSIONS OF LAW 1. The claim for service connection for arthritis of multiple joints is not well grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1998). 2. The claim for service connection for skin cancer is not well grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The majority of the veteran's service medical records are unavailable, in that such records were, apparently, destroyed in a fire at the National Personnel Records Center in 1973. The sole remaining service medical record consists of a service separation examination dated in June 1952, which is negative for history, complaints, or abnormal findings indicative of the presence of either arthritis or skin cancer. At the time of a private medical examination in June 1989, the veteran complained of painful swelling in multiple joints. Reportedly, the swelling began in the veteran's knees, and then subsequently progressed to his hands. According to the veteran, he had experienced persistent swelling of his knees and hands, and, at times, of the metatarsal joints. On physical examination, there was marked soft tissue swelling of the proximal interphalangeal and metacarpophalangeal wrist joints. Tinel's sign was negative, though there was fullness along the elbows suggestive of early nodule formation. The veteran shoulders showed restricted movement, which was decreased by 20 degrees on both internal and external rotation. His toes and ankles exhibited squeeze tenderness, and both knees showed synovial thickening, though with a normal range of motion. At the time of evaluation, effusion was present in the veteran's left knee. Range of motion of the hips was within normal limits, and the sacroiliac joints were not tender. Further noted was that the veteran's cervical spine showed 10 degrees of decreased lateral flexion and rotation. The clinical impression was polyarticular arthritis, certainly consistent with rheumatoid arthritis. Private outpatient treatment records covering the period from August 1989 to November 1990 show treatment during that time for various orthopedic problems, including rheumatoid arthritis, tendinitis, and synovitis. In a Department of Veterans Affairs (VA) examination report received in October 1991, there was noted a medical history of rheumatoid arthritis in February 1989. At the time of private outpatient treatment in late July 1992, the veteran was reported to be under treatment by a physician for rheumatoid arthritis. In August 1992, the veteran was hospitalized at a private medical facility with a complaint of pain in his knees. At the time of admission, it was noted that the veteran had been followed for rheumatoid arthritis, with disabling pain in his knees, in particular, on the right side. Radiographic studies conducted during the veteran's hospitalization showed mixed rheumatoid and osteoarthritic changes. The diagnosis noted at the time of admission was rheumatoid arthritis. Following a VA examination for housebound and/or aid and attendance status, there was noted the presence of generalized rheumatoid arthritis, as well as osteoarthritis of both knees. In a VA Clinical Programs Information Letter dated in early November 1992, it was noted that approximately 6,000 victims of cold injury were evacuated from Korea during the winter of 1950-51. Further noted was that, according to a review in the Journal of Burn Care Rehabilitation, "there is a risk of development of carcinoma in an old frostbite injury." Reportedly, there had been at least 22 cases of carcinoma arising from frostbite scars, primarily squamous cell, with an anatomic predilection for the heel, though scars on the temple and the ear had also been involved. According to the study, there appeared to be a latent period of 20 to 30 years between the cold injury in question and the development of cancer. The Information Letter was further to the effect that joint changes had been noted between 5 and 12 months following frostbite. While such changes were found only in the joints of extremities which had been frostbitten, there did not seem to be much correlation between the severity of the frostbite and the appearance of changes in the joints. In the early years, there did not appear to be much correlation between stiffness of the joints and radiographic changes, causing some researchers to postulate that joint stiffness early on was due to contracted scar tissue surrounding the joint rather than actual arthritis. However, subsequent development of clinical arthritis in the affected joints many years after frostbite had been well described in the medical literature. Based on such information, it was "likely" that veterans who sustained cold injuries in World War II and Korea had experienced late sequelae of the injuries, including skin cancers in scars and arthritis. In correspondence of late December 1992, the veteran's private physician wrote that he had followed the veteran for severe rheumatoid arthritis "for a number of years." Reportedly, this arthritis had affected the veteran's hips, knees, hands, and shoulders. A VA examination for housebound and/or aid and attendance status dated in March 1993 was significant for diagnoses of rheumatoid arthritis and osteoarthritis. Private outpatient treatment records covering the period from December 1993 to November 1996 show treatment during that time for various skin problems. In a private pathology report dated in December 1993, there was noted the presence of an actinic keratosis (carcinoma in situ) of the veteran's right upper midchest. A subsequent dermatopathology report of March 1994 was significant for the presence of an apparent hyperplastic actinic keratosis on the veteran's left malar eminence, surmounted by a small blood crust. In a subsequent report of dermatopathology dated in March 1996, there was noted the presence of an irritated seborrheic keratosis below the veteran's right ear, as well as basal cell carcinoma below the right ear near the jaw area. In a publication of the National Veterans Service of the Veterans of Foreign Wars of the United States dated in September 1995, it was noted that veterans who were service connected for cold injuries faced an increased risk for developing certain conditions, including squamous cell carcinoma of the skin at the site of the scar from the cold injury, as well as arthritis or bony changes such as lesions. Further noted was that, during the onset of the Korean period, many soldiers had inadequate clothing and inappropriate footgear. Reportedly, there was an "indication" in the literature that residuals of an arthritic type could occur 20 to 30 years after an original exposure to cold injury. On VA peripheral vascular examination in September 1997, the veteran gave a history of frostbite involving both his hands and feet while in Korea in 1951. According to the veteran, his current symptoms for the most part consisted of his feet hurting, especially when it was cold, resulting in numbness and tingling involving both of his lower extremities. Further noted were problems with "nocturnal cramping," with the veteran experiencing difficulty in straightening out his toes. According to the veteran, the difficulties he experienced with his hands were of a similar nature. Physical examination of the veteran's extremities was significant for the presence of moderately cold lower extremities, including the feet, as characterized by a pale coloration. However, there were 2-3 + dorsalis pedis pulses bilaterally, as well as 1-2 + dorsalis pedis pulses. Radial pulses were 2-3 +, and bounding. At the time of examination, there were no skin changes other than onychomycosis. The pertinent clinical impression was of a history of frostbite involving the lower extremities as well as the upper extremities, with evidence of onychomycosis. In October 1997, a VA orthopedic examination was accomplished. At the time of examination, the veteran gave a history of rheumatoid arthritis diagnosed in 1987. Reportedly, he had experienced complaints in multiple joints "years prior" to his original diagnosis. Current complaints included pain mostly in the upper extremities, with the veteran dependent on crutches or a walker for ambulation. Further noted was that the veteran had undergone a right total knee arthroplasty, following which he did "quite well," up until the time he fractured his femur above the arthroplasty. The veteran stated that he was currently able to walk around his house using a walker, though he required a wheelchair for longer distances. Currently, he experienced pain primarily in both shoulders, wrists, and hands, as well as in both knees and ankles. Radiographic studies of the veteran's right shoulder conducted as part of his orthopedic examination showed an almost complete loss of the glenohumeral joint space, as well as certain osteophyte formations. There was degenerative change of the acromioclavicular joint, and the acromiohumeral head distance was decreased, suggestive of rotator cuff thinning or injury. The veteran's left shoulder showed a loss of joint space involving the glenohumeral joint, with the acromiohumeral head distance decreased, suggesting rotator cuff thinning or tear. Degenerative changes were similarly noted in the acromioclavicular joint. Radiographic studies of the veteran's right and left hand were consistent with, among other things, arthritic changes suggestive of rheumatoid arthritis and secondary osteoarthritis. The veteran's left knee showed radiographic evidence of severe osteoarthritic changes. The clinical assessment at the time of orthopedic examination was as follows: 1. Rheumatoid arthritis with diffuse findings consistent with disc disease, including bilateral rotator cuff arthropathies in the bilateral shoulders resulting in a limited range of motion and moderate pain, in particular, with crutch ambulation; and bilateral wrist and hand arthritis, secondary to rheumatoid arthritis, though with a range of motion currently not restricted, and no secondary effects such as attrition of the tendons or subluxation of the joints. 2. Status post right total knee arthroplasty, most likely secondary to rheumatoid arthritis, with a complication of a paraprosthetic fracture following total joint replacement. 3. Left knee rheumatoid arthritis, currently mild to moderate by clinical evaluation, and 4. Bilateral ankle rheumatoid arthritis with an excellent range of motion, currently functionally acceptable. Private outpatient treatment records covering the period from November 1997 to March 1998 show treatment during that time for various dermatologic problems. In a pathology report dated in November 1997, there was noted the presence of squamous cell carcinoma in situ of the veteran's chest. A subsequent pathology report of March 1998 was significant for squamous cell carcinoma in situ of the sideburn area of the veteran's left face. In correspondence of early April 1998, the veteran's private physician wrote that the veteran suffered from "well documented" rheumatoid arthritis and osteoarthritis, resulting in significant impairment, for which he had received longstanding, complex care. In correspondence of April 1998, another of the veteran's physicians wrote that, during the period from March 1994 to April 1998, the veteran had suffered from a biopsy-proven basal cell carcinoma of the right jaw area, as well as squamous cell carcinoma in situ of the left cheek and upper central chest. Additionally noted were numerous premalignant lesions (actinic keratoses) which had been treated on several occasions, most recently in February 1998. Private outpatient treatment records covering the period from June to August 1998 show treatment during that time for various dermatologic pathology. In an entry of early August 1998, it was noted that the veteran was status post squamous cell carcinoma times two and basal cell carcinoma of the right jaw area. Further noted was that the veteran was currently receiving treatment for actinic keratoses. Physical examination revealed the presence of numerous typical actinic keratoses on the veteran's ears and face. The clinical assessment was actinic keratoses, with no evidence of new or recurrent basal or squamous cell carcinoma on examination "from the waist up." In correspondence of early September 1998, a private physician's assistant working with the veteran's private dermatologist wrote that he and the dermatologist had discussed the veteran's skin problems, and had "mutually agreed" that they did not believe that the veteran's skin cancers were related to cold temperatures, but might be related to the increased penetration of the sun's ultraviolet light rays "due to snowy conditions while in Korea." Noted at the time of the aforementioned comment was that neither the physician's assistant nor the veteran's treating dermatologist were "cold weather injury specialists." In correspondence of September 1998, the veteran's private rheumatologist wrote that, while he had "no expertise in cold weather injuries," he could attest to the veteran's complex arthritis condition which consisted of both rheumatoid arthritis and osteoarthritis. Reportedly, the veteran's condition developed years after his cold injuries, but as certain accompanying information suggested, "such a pattern may develop." The veteran's physician commented that he was not qualified to present the scientific information regarding any connection between the etiology of the veteran's disorders and cold exposure, and would therefore defer that discussion to others who had "thoroughly scrutinized the published studies in an appropriate critical manner." In November 1998, a VA dermatologic examination was accomplished. At the time of examination, it was noted that the veteran's extensive claims folder had been reviewed, and that he had a "longstanding history" of skin cancers, primarily squamous and basal cell carcinomas of the head, neck, and arms. Each of these apparently occurred approximately 30 to 40 years following his discharge from the military. Reportedly, the veteran had undergone freezing of numerous skin cancers on his face, scalp, neck, and arms. On physical examination, there were noted multiple hyperpigmented areas consistent with cryosurgical freezing of squamous and basal cell carcinomas of the scalp, head, neck, and forearms. The pertinent diagnosis was multiple surgical excisions of skin cancers as described. In the opinion of the examiner, it was "extremely unlikely" that the veteran's skin cancers were caused or aggravated by his brief service in the military. In an addendum to the aforementioned dermatologic examination, likewise dated in November 1998, it was noted that the veteran's extensive C-file had once again been reviewed, and that it was still the examiner's opinion that the veteran's skin cancers were "unlikely to be related to his cold weather exposure while in Korea." The examiner further opined that he did not believe that the veteran's skin cancers were related to his cold weather exposure or to his military service. On VA orthopedic examination in December 1988, it was noted that the veteran's claims folder was available, and had been reviewed. Further noted was that the veteran's past medical history was significant for rheumatoid arthritis. At the time of evaluation, the veteran reported intermittent episodes of bilateral foot pain which occurred as the weather turned cold. The veteran stated that this began following a history of cold exposure "while being out in the field." Radiographic studies of the veteran's pelvis showed demineralization of the bones of the pelvis and hips, as well as degenerative changes at both sacroiliac joints. Evaluation of the veteran's knees showed a satisfactorily- positioned joint prosthesis at the right knee, in conjunction with an old post-traumatic deformity at the distal metaphysis and partially visualized distal shaft of the right femur. The bones of both of the veteran's knees were demineralized, and there was evidence of severe degenerative changes of the left knee. The clinical impression at the time of examination was of bilateral hip and left knee rheumatoid arthritis, with a clinically normal examination of both feet. An addendum to the aforementioned orthopedic examination, likewise dated in December 1988, was to the effect that the veteran's rheumatoid arthritis was an autoimmune disease, and could therefore not be the result of cold exposure while in the service. In addition, his foot examination demonstrated findings consistent with bony changes secondary to rheumatoid arthritis, with the result that it was "not likely" that the veteran's current foot complaints were related to his prior cold exposure. In a private outpatient treatment record dated in October 1999, there were noted various large actinic keratoses on the veteran's face, neck, scalp and chest. Analysis As to the issues currently before the Board, the threshold question which must be resolved is whether the veteran's claims are well grounded. See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim is a plausible claim, meaning a claim which appears to be meritorious. See Murphy, 1 Vet. App. 81. A mere allegation that a disability is service connected is not sufficient; the veteran must submit evidence in support of his claim which would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the inservice injury or disease and the current disability (medical evidence). See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). The second and third elements of this equation may also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was "noted" during service or during an applicable presumptive period; (b) evidence showing post service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. See 38 C.F.R. § 3.303(b) (1998); Savage v. Gober, 10 Vet. App. 488 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumptive period and (ii) present manifestations of the same chronic disease. Ibid. For the purpose of determining whether a claim is well grounded, the credibility of the evidence in support of the claim is presumed. See Robinette v. Brown, 8 Vet. App. 69 (1995). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1998). Moreover, where a veteran served ninety (90) days or more during a period of war, and arthritis or cancer becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.307, 3.309 (1998). In the present case, the majority of the veteran's service medical records are unavailable, in that those records were, apparently, destroyed in a fire at the National Personnel Records Center in 1973. However, a service separation examination dated in June 1952 shows no evidence whatsoever of either arthritis or skin cancer. The earliest clinical indication of the presence of either of those disabilities is revealed by a report of VA examination received in October 1991, at which time there was noted a medical history of rheumatoid arthritis no earlier than February 1989, fully 37 years following the veteran's discharge from service. Skin cancer was likewise first noted no earlier than 1993, more than 40 years following the veteran's service separation. The veteran argues that his current arthritis and skin cancer are the result of exposure to extreme cold in Korea during the period from March 1951 to March 1952. While it is true that, based on a review of the record, the veteran did in fact serve in Korea for at least a portion of the period in question, there exists no evidence that, during that period, he experienced "cold injuries" to other than his feet. Indeed, both VA and private examiners have opined that the veteran's skin cancers are unrelated to past cold weather exposure. Arthritis, while currently present in a number of the veteran's joints, is predominantly of the rheumatoid type, and, based on a majority of the evidence, likewise unrelated to cold exposure. The Board concedes that, based on a Clinical Programs Information Letter of November 1992, there exists documented evidence of various "late sequelae" including skin cancers in scars and arthritis, in certain veterans who sustained cold injuries in World War II and Korea. However, none of the studies in question bear out the notion that such pathology could develop long after the fact in areas of the body not exposed to such extreme cold. In the present case, and as previously noted, service connection is in effect only for the residuals of cold injuries to each of the veteran's feet. Currently, there exists no evidence that the veteran did, in fact, experience cold injury to other parts of his body sufficient to later induce the development of either arthritis or skin cancer. See Roberts v. West, No. 97-1993 (U.S. Vet. App. Nov. 19, 1999). The Board is cognizant that, in correspondence from an assistant to the veteran's private dermatologist dated in September 1998, an opinion was offered that the veteran's skin cancers "might" be related to the increased penetration of the ultraviolet rays of the sun "due to snowy conditions while in Korea." However, this statement is speculative at best, and, as such, cannot serve to "justify a belief by a fair and impartial individual that the (veteran's) claim is well grounded." See Tirpak v. Derwinski, 2 Vet. App. 609 (1992). As noted above, in order for a claim to be well grounded, there must be competent evidence not only of current disability, but of a nexus between some inservice injury or disease and that disability. See Caluza v. Brown, 7 Vet. App. 498 (1995). Notwithstanding the current diagnosis of basal and/or squamous cell carcinoma, the only evidence which the veteran has submitted which supports a finding of a nexus of this pathology to service is his own testimony. Evidence of such a nexus, however, cannot be provided by lay testimony, because "lay persons are not competent to offer medical opinions." Grottveit, supra; see also Meyer v. Brown, 9 Vet. App. 425 (1996); Edenfield v. Brown, 8 Vet. App. 384 (1995) (en banc); Grivois v. Brown, 6 Vet. App. 136 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Moreover, the veteran has failed to provide evidence of continuity of symptomatology under 38 C.F.R. § 3.303(b). See Savage, 10 Vet. App. at 498. His statements alone are insufficient to relate his current arthritis or skin cancer to his period of service, or to any applicable presumptive period. There is no reason to doubt that that the veteran's service in Korea unquestionably exposed him to extraordinarily harsh climatic conditions. The basis for this appeal's disposition is the absence of any link by competent medical specialists associating his skin cancer or arthritic disorder to the circumstances of his military service. ORDER Service connection for arthritis of multiple joints is denied. Service connection for skin cancer is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals