Citation Nr: 1330996	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  10-42 990	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage, Alaska


THE ISSUE

Entitlement to service connection for basal cell carcinoma of the face, to include as the result of exposure to herbicides.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

M. Scott Walker, Counsel


INTRODUCTION

The Veteran served on active duty from December 1968 to November 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska.  The Board notes that, in February 2013, an opinion was requested from a specialist working in conjunction with the Veterans Health Administration (VHA).  That opinion was associated with the record in April 2013.


FINDINGS OF FACT

The medical evidence of record stands in equipoise as to whether basal cell carcinoma of the face was incurred during the Veteran's period of active service.


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor basal cell carcinoma of the face was incurred during active service.  38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (the VCAA)

As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits and to assist in the development of a claim.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2013).  

In the instant case, the Veteran's claim is granted herein.  As such, any deficiencies with regard to VCAA for this issue are harmless and non-prejudicial.  

II. Service Connection

The Veteran is currently claiming entitlement to service connection for basal cell carcinoma of the face, to include as the result of in-service herbicide exposure.  To prevail on the issue of service connection on the merits, there must be evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247 (1999).  In addition, certain chronic diseases, such as cancer, may be presumed to have been incurred or aggravated during service if they became disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).

If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice.  Rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b) (2013).  The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

With regard to his theory of entitlement, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1974, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6)(iii) (2013). 

Service in the Republic of Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam.  38 C.F.R. § 3.313 (2013).  If a veteran was exposed to a herbicide agent during active military, naval, or air service, diabetes mellitus shall be service-connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied.  

As was noted in a prior Board decision of April 2009 on an unrelated issue, the Veteran in this case is legally-presumed to have been exposed to herbicide agents, to include Agent Orange.  See 38 C.F.R. §§ 3.307(a)(6), 3.313.   In cases such as these, the following diseases are deemed associated with herbicide exposure, under VA law: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease.   38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 3.309.

Turning to the Veteran's period of active service, service treatment reports are negative for complaints or diagnoses of any skin tumor, to include basal cell carcinoma.  The Veteran's November 1970 separation examination did not reveal any abnormality of the skin.

Post-service, an October 2005 pathology report indicates that an excisional biopsy of skin of the Veteran's left temple was diagnosed as a basal cell epithelioma (carcinoma).  Based on this report, it appears that the Veteran's facial tumor was diagnosed as a basal cell carcinoma which is not included on the list of diseases subject to presumptive service connection.  However, the Board determined in February 2013 that it was unclear whether the Veteran's claimed basal cell carcinoma is related to his exposure to herbicide agents in service, or otherwise related to service, and requested a VHA opinion.  

As a result, a VHA specialist's opinion was associated with the record in April 2013.  Per that report, the specialist conducted a thorough review of all pertinent medical evidence of record, noting the Veteran's diagnosis of basal cell carcinoma.  She indicated that this type of skin cancer is not akin to Merkel cell carcinoma (of neuroendocrine origin and distantly-related to malignant ganglioneuromoa which is enumerated on the list of disorders presumed associated with herbicide exposure).  As to whether basal cell carcinoma was related to herbicide exposure, or otherwise related to sun exposure during the Veteran's period of active service, the specialist was unable to provide a definitive answer (as to either).  

Though her opinion was ultimately negative, finding it less likely than not that basal cell carcinoma was caused by herbicide or sun exposure during the Veteran's military career, she also noted that there was evidence to suggest that many tumors of the skin may be associated with herbicide exposure.  It was further noted that one relevant medical article addressed the possibility that basal cell carcinomas were increased in the veteran population exposed to Agent Orange.  However, in the four years since that article, it had not been better established that herbicides are definitely linked to this type of tumor, or other tumors of the skin not specifically enumerated in VA regulations.  As such, while the specialist indicated that there was not enough evidence to establish a causal link, she also pointed out that it was not unreasonable to conclude that tumors of the skin may in fact be induced by herbicides.

With regard to sun exposure, which the examiner found was a likely cause of the basal cell carcinoma, she determined that the sun to which the Veteran was exposed during his period of service contributed to the development of his skin tumor, though the extent of that contribution was difficult to quantify.  She noted that he likely sustained significant sunburns during service, as well as in his childhood and his post-service adult years.  As such, she determined that it would be speculative to decide conclusively which era of his life contributed most significantly to the formation of his basal cell carcinoma, though it was reasonable to conclude that the sun received in service contributed less than the sun he received out of the service.

To that end, the Board notes that VA will resolve reasonable doubt where the evidence is in equipoise.  38 U.S.C.A. § 5107 (West 2002).  VA shall consider all information and lay and medical evidence of record.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA resolve reasonable doubt in favor of the claimant.  38 C.F.R. § 3.102 (2013).

Evidence is in approximate balance, or equipoise, when the evidence in favor and opposing the veteran's claim is found to be almost exactly or nearly equal.  When the fact finder determines that the positive and negative evidence relating to a veteran's claim are nearly equal, thus rendering any determination on the merits "too close to call," reasonable doubt is resolved in favor of the claimant.  Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 

Although the VHA opinion was ultimately negative, the Board finds that the speculative nature of the opinion, which itself was comprehensive and quite detailed, prevents the Board from reaching a negative conclusion in this case.  As noted, the specialist stated that many tumors of the skin may be associated with herbicide exposure, and addressed the possibility that basal cell carcinomas were increased in the veteran population exposed to Agent Orange.  In addition, she stated that it was not unreasonable to conclude that tumors of the skin, not on the presumptive list for herbicide exposure, may in fact be induced by herbicides.  Moreover, it was noted that sun exposure during his period of service contributed to the development of his skin tumor.  Therefore, even though the specialist was unable to conclusively state that the Veteran's basal cell carcinoma was linked to either in-service herbicide or sun exposure, the medical evidence contained in her report does not rule out the possibility.

The Board finds that the evidence in this case is at least in equipoise with regard to the etiology of the Veteran's basal cell carcinoma of the face, finding that the evidence of record, both for and against the Veteran's claim, is nearly equal.  Here, the VHA specialist concluded that the Veteran likely sustained significant sunburns in service and the inservice sun exposure contributed to the development of basal cell carcinoma.  Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that this disability is at least as likely as not related to service, and therefore and service connection is warranted.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for basal cell carcinoma of the face is granted.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs