Citation Nr: 1519289 Decision Date: 05/05/15 Archive Date: 05/19/15 DOCKET NO. 07-31 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for skin cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ashley Martin, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to October 1971, to include service in Vietnam from December 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in July 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran appeared at a March 2010 hearing before the undersigned. A transcript of the proceeding is of record. The Board remanded this matter several times, most recently in November 2013. As there has been substantial compliance with the remand orders, the Board may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran was exposed to herbicides while serving in the Republic of Vietnam. 2. Skin cancer is not among the disabilities for which presumptive service connection for herbicide exposure is warranted. 3. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran has skin cancer that is related to active duty, to include exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for skin cancer, to include as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110 , 1111, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a), see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Notice was provided in a May 2006 letter. Accordingly, the duty to notify has been fulfilled. VA's duty to assist has also been met. The RO has obtained service treatment, private treatment, and VA treatment records. Medical records from the Social Security Administration (SSA) have also been associated with the claims file. The Board remanded this matter in November 2013 for additional treatment records, specifically VA treatment records from Dorn Dermatology. The Board also requested dermatology records from Dr. B.T. The Veteran's outstanding VA treatment records were obtained. In regards to his private treatment records from Dr. B.T, the RO sent a December 2013 letter to the Veteran, requesting that he complete VA Form 21-4142. To date, the Veteran has not responded to the RO's request or provided any information regarding Dr. B.T. Thus, the Board finds that any further attempts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(1). In addition, the Veteran was afforded several VA examinations and medical opinions throughout the course of the appeal. Taken together, the Board finds that the examinations and medical opinions are adequate; as they were conducted by medical professionals who reviewed the claims file, solicited history from the Veteran, performed thorough examinations, and provided opinions supported by a rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000). II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Shedden v. Principi, 381 F.3d 1163 (Fed.Cir.2004); Hickson v. West, 12 Vet.App. 247 (1999). For chronic diseases, such as malignant tumors, the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection can also be established on a presumptive basis for certain diseases associated with exposure during service to herbicides. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. For purposes of establishing service connection for a disability claimed to be a result of exposure to Agent Orange, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). The applicable criteria also provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). And, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Here, the Veteran has been diagnosed with squamous cell skin carcinoma, actinic keratosis, and basal cell skin carcinoma. He contends that his skin cancer is due to herbicide exposure. Initially, the Board finds that the Veteran is not entitled to service connection on a presumptive basis. The Veteran's service treatment records do not show treatment or a diagnosis of any skin condition. The post-service medical evidence reveals cancer diagnoses in November 2004 and June 2011, more than 30 years after separation from service. Thus, the Board finds that the Veteran is not entitled to service connection on a presumptive basis as there is no evidence that the Veteran's skin cancer manifested in service, within one year of service separation, or that the Veteran had continuity of symptoms after service. 38 C.F.R. §§ 3.303(b), 3.307. The Veteran is also not entitled to presumptive service connection under § 3.307. The record indicates that the Veteran had service in the Republic of Vietnam; and thus, exposure to herbicide agents, including Agent Orange, is conceded. 38 C.F.R. § 3.307(a)(6)(iii). However, only certain skin diseases, such as chloracne, are presumptively associated with Agent Orange exposure. 38 C.F.R. § 3.309(e). Squamous cell skin carcinoma, actinic keratosis, and basal cell skin carcinoma are not listed as a diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C.A. § 1116(a)(2) ; 38 C.F.R. § 3.309(e). Notwithstanding the foregoing, the Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this regard, the Board also finds that the Veteran is not entitled to service connection on a direct basis as there is no competent evidence linking the Veteran's condition to service. As detailed above, the Veteran's service treatment records show no complaints, treatment, or diagnosis of skin cancer. Post-service treatment records reflect diagnoses of squamous cell skin carcinoma, actinic keratosis, and basal cell skin carcinoma. However, the records do not link the Veteran's skin cancer to service or herbicide exposure. Rather, they indicate that the Veteran has had significant sun exposure. A VA treatment record from August 2010 notes that the Veteran is well tanned from the waist up and that sun damage to the face is evident. In August 2010 and May 2008, VA providers noted that the Veteran is a landscaper and instructed him to wear sunscreen. VA examination reports also do not link the Veteran's skin cancer to herbicide exposure. The Veteran was afforded an examination in August 2009, where the examiner noted that the Veteran has a scar on the forehead and the nasal fold. After reviewing the Veteran's medical history and conducting an examination, the VA examiner diagnosed basal cell carcinoma to the left forehead and right nasal fold. He opined that the Veteran's diagnosis is less likely than not secondary to Agent Orange exposure. The rationale given was that "basal cell carcinoma is not a presumptive disorder for Agent Orange exposure." The August 2009 examiner provided an addendum opinion in July 2010. The examiner clarified that the Veteran does not have active basal cell carcinoma to the left forehead or right nasal fold. He also stated that his August 2009 opinion remains unchanged. However, to further support his previous opinion, the examiner noted that the Veteran had worked for many years as a landscaper, sustaining sun damage to the skin, which in turn, lead to his actinic keratosis and basal cell carcinoma. An October 2011 VA examination report also fails to link the Veteran's condition to service or herbicide exposure. After reviewing the Veteran's records, the October 2011 examiner opined that it is less likely as not that the Veteran's skin cancer started in active service. She noted that the Veteran's service treatment records are silent for any skin issues. In addition, the examiner opined that the Veteran skin cancer was not related to Agent Orange exposure in service. In providing this opinion, the examiner outlined the Veteran's medical history and noted that she could not find any studies linking squamous cell skin carcinoma, actinic keratosis, and basal cell skin carcinoma to Agent Orange. She referred to the American Cancer Association website, which reports that there is inadequate and insufficient evidence to determine any association between these entities. The examiner also noted that the Veteran has documented sun damage. She reported that he works in lawn care and that his hobbies include golf and fishing. Numerous sources, including the American Cancer Association website, report that skin cancer usually occurs in areas exposed to the sun and that sunlight exposure and immunosuppression are risk factors for cancer of the skin, with chronic sun exposure being the strongest environmental factor. Therefore, the examiner concluded that the Veteran's squamous cell skin carcinoma, actinic keratosis, and basal cell skin carcinoma are less likely than not related to exposure which occurred during active service , but more likely related to the sun exposure he has had in his job and hobbies. Lastly, the examiner noted that squamous cell skin carcinoma, actinic keratosis, and basal cell skin carcinoma are not on the list of disease recognized as being related to Agent Orange. In an April 2013 addendum, another physician reviewed the October 2011 VA examination and confirmed that there were diagnoses of cancerous and pre-cancerous lesions, none of which fall into the categories listed in Item 5 of the examination form (dermatitis, eczema, bullous disorder, psoriasis, skin infections, cutaneous manifestations of collagen-vascular disease or papulosquamous disorder). In sum, based on the VA examinations reports, the Veteran's sun exposure, and the absence of skin complaints in service, the Board finds that there is no competent evidence linking the Veteran's skin cancer to service, including herbicide exposure. The Board has considered the February 2008 opinion from Dr. B.T., the Veteran's private physician. Dr. B.T. opined that it is at least likely as not that the Veteran's skin condition is related to his herbicide exposure. The examiner stated that Veteran's condition is not related to any occupational or recreational activities, but is more likely due to Agent Orange exposure. The private physician provided no rationale to support his opinion. In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Because the private physicians failed to provide a basis for his conclusions, the Board finds that this opinion lack probative value, and therefore, gives greater weight to the VA examiners' opinions. The Board has also considered the Veteran's lay statements concerning the etiology of his skin cancer. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the disability at issue in this case could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). Without competent and credible evidence of an association between the Veteran's condition and his active duty, including herbicide exposure, service connection is not warranted. As the preponderance of the evidence is against the Veteran's service connection claim, the benefit-of-the-doubt rule does not apply, and the Veteran's service connection claim for skin cancer, to include as due to herbicide exposure is denied. 38 U.S.C.A §5107. ORDER Entitlement to service connection for skin cancer, to include as due to herbicide exposure is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs