Citation Nr: 1343493 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 07-33 068 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to service connection for a skin disorder, to include basal cell carcinoma, status post excision. REPRESENTATION Appellant represented by: Michael Woods, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to December 1971. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a February 2007 decision of the RO. In May 2012, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO. The transcript is of record. In August 2012, the Board remanded the case for further development of the record. In July 2013, the Board requested a medical opinion from a health care professional in the Veterans Health Administration (VHA) regarding the etiology of the claimed skin disorder. The Board determined that such an opinion was necessary to address the medical questions raised by the case. 38 C.F.R. §20.901(a), (d). The Veteran was notified that the Board intended to seek such an opinion. Given the favorable nature of this decision, the Board finds that there is no prejudice to the Veteran in adjudicating this matter that this time. A review of the Veterans Benefit Management System (VBMS) and the Virtual VA paperless claims processing system reveal documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT The currently demonstrated skin disorder manifested by right ear basal cell carcinoma, status post excision is shown as likely as not to be due to a symptomatic mole that was treated while the Veteran was serving on active duty. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his skin disability manifested by right ear basal cell carcinoma, status post excision is due to disease or injury that was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION To the extent that the action taken hereinbelow is favorable to the Veteran, a discussion of compliance with VA's duty to notify and assist is not required at this time. The Veteran avers that his current skin disorder, to include basal cell carcinoma, status post excision is due to service, to include as secondary to Agent Orange exposure (as he contended at his Board hearing). Basal cell carcinoma is not listed as one of the conditions that would be entitled to service connection pursuant to 38 C.F.R. § 3.309 presumptive regulations. Thus, the Board will proceed with a direct service connection analysis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, a Veteran 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)). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, the evidence shows that the Veteran was diagnosed with skin cancer (basal cell carcinoma) on his right ear and had it excised in 2008. Hence, a current disability exists. The service treatment records showed that the Veteran had a mole located behind his right ear that was symptomatic and was removed in service. The post-service treatment records showed that, in 2008, a right posterior ear lesion, wart-like and linear in appearance, was found to be positive for basal cell carcinoma (skin cancer). Also in 2008, the Veteran had the basal cell carcinoma excised. The Board notes that the Veteran had a mole removal in service in the same area as the basal cell carcinoma excised in 2008. Due to the medical question involved in this case, the Board requested and received a VHA response from VA Chief of Dermatology, Dr. B.L. After careful consideration of the evidence, to include the Veteran's medical and service history, Dr. B.L. opined that it was likely that the Veteran's basal cell carcinoma of the right ear was etiologically related to the mole that was manifest in service. He provided thorough supporting rationale and provided a sound medical basis for his conclusion. Essentially, based on a post-operative treatment note in 2008 identifying the Veteran's skin condition as "nevus sebaceous with Basal Cell Carcinoma, status post excision," Dr. B.L. explained that "mole" and "nevus" were synonymous terms. He stated that the Veteran's right postauricular mole was a nevus sebaceous and explained that malignant tumors, such as basal cell carcinoma, develop within nevus sebaceous, thus, it was likely that the in-service mole and the post-service skin cancer were etiologically related. Based upon the evidence of record, the Board finds that service connection for a skin disorder, to include basal cell carcinoma, status post excision is warranted as the evidence here establishes that the current disease incurred in service. 38 C.F.R. § 3.303(d). ORDER Service connection for a skin disorder manifested by a right ear basal cell carcinoma, status post excision is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs