Citation Nr: 1532252 Decision Date: 07/29/15 Archive Date: 08/05/15 DOCKET NO. 12-24 337A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for basal cell carcinoma. 2. Entitlement to service connection for residuals of excision of basal cell carcinomas (claimed as tumors). REPRESENTATION Appellant represented by: Mrs. Carol Ponton, Attorney at Law ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from February 1960 to June 1963. These matters come on appeal before the Board of Veterans' Appeal (Board) from a November 2010 and a September 2014 rating decisions by the Department of Veterans Affairs, Regional Office located in St. Petersburg, Florida (RO), which denied the benefits sought on appeal. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. With consideration of the doctrine of reasonable doubt, the Veteran's basal cell carcinoma is likely related to his in-service sun exposure while he was stationed in Libya. 2. The Veteran has undergone surgical excision of basal cell carcinoma infiltrative types (claimed as tumors) from his cheeks, nose, neck, scalp, temples, eyelids and ears. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for basal cell carcinoma have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). 2. The criteria for entitlement to service connection for residuals of excision of basal cell carcinoma infiltrative types have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty 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, 3.326(a). Given the fully favorable decision contained herein, discussion of the VCAA notice and assistance provided to the Veteran is unnecessary, since any deficiency in such notice or assistance would constitute harmless error. 2. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection, there must be medical evidence of a (1) 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The Veteran contends that he has skin cancer, specifically basal cell carcinoma of multiple sites as well as residuals of surgical excision of skin cancers of multiple sites, resulted from excessive exposure to the sun while he was stationed at Wheelus Airbase in Libya for approximately 58 days during his period of service. The Veteran reports that while he served as a crew chief in Libya, he worked on the flight line for around twelve hours a day without a hat sunscreen or any cover and he was frequently severely blistered by the sun. Post-service private treatment records show the Veteran has been treated for basal cell carcinomas. He was first treated in 1987 for chronic solar damage of the head and neck. Since October 1991, his medical records indicate that he has had multiple basal cell carcinomas removed from his cheeks, nose, neck, scalp, temples, eyelids and ears, and several of those cancers have been identified as infiltrative type. The competent medical evidence of record clearly demonstrates that the Veteran has a current disability. As such, element (1) has been satisfied. With respect to in-service disease, the Veteran's service treatment records are negative for any report or finding of basal cell carcinoma. The Veteran was treated for pityriasis rosea in July 1962 which manifested as a pruritic rash on his chest and abdomen. He was also treated for viremia. However, none of the service treatment records show complaints indicative of basal cell carcinoma or reflect complaints or treatment for sun exposure. The report of his June 1963 examination prior to separation shows that his skin was evaluated as normal and he denied any history of skin problems, cancers, or tumors on the associated report of medical history. The above evidence fails to show that basal cell carcinoma first appeared during the Veteran's service or to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.303, 3.307. 3.309. With respect to the Veteran's claimed sun exposure, his service personnel records do confirm that he served at least 55 days in Libya. The Board notes it is reasonable to assume that exposure to the sun would be consistent with his service in Libya, and with regard to his lay contentions regarding sun exposure, the Board finds that he is competent to report such exposure. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Although there is no objective evidence to actually document any incident of alleged sun exposure in service, the Board accepts the Veteran's assertions as to his in-service sun exposure as credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154. As such, element (2) in-service injury has been established. Turning to the crux of the matter on appeal, element (3), a medical nexus between the Veteran's basal cell carcinoma and in-service sun exposure, the Board notes that there is competent medical evidence both for and against such a link. In that regard, when there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board, after having carefully reviewed the record, and weighing the evidence both in support of and against the claim, finds that the evidence is in relative equipoise as to whether the Veteran's basal cell carcinoma may be related to his reported sun exposure in service. The competent evidence against the claim includes the VA examiner's medical opinion from a July 2012 VA skin examination report. The VA examiner concluded that it was less likely than not that the Veteran's basal cell carcinoma was related to his period of service, to include in-service sun exposure. Rather, the VA examiner indicated that the most likely cause of the Veteran's skin cancer was the result of his long post-service residency in Florida. It was further noted that the Veteran's basal cell carcinoma did not first manifest until 20 years after the Veteran's separation from service and after he had been living in Florida since 1967, where he has been exposed to sun light regularly. The competent evidence of record also includes a June 2012 private medical statement from Dr. S. P. that supports a link between the Veteran's basal cell carcinoma and in-service sun exposure. In his statement, Dr. P. noted that based on a review of the Veteran's reported sun exposure, the Veteran had excessive sun exposure without adequate protection as a result of his service in Libya. Dr. P. further stated that there is always a lag between the time of initial exposure and the later onset of skin cancer activity, but once the sun damage is done, it is permanent. The Veteran is expected to have multiple new skin cancers in the future in those sun exposed areas of his skin. Dr. P. concluded that the Veteran's severe chronic actinic damage and basal cell carcinomas (e.g. multiple skin cancers) are as likely as not a result of the excessive sun exposure from his military service in Libya. In reviewing this competent evidence which supports the claim, the Board notes that Dr. P. started treating the Veteran in 1987, and that his opinion is based on the Veteran's reported history of sun exposure during service in Libya, and that the private doctor included an explanation and/or rationale for the opinion rendered. While the Dr. P.'s medical opinion is not definitive and the Board does not doubt that the Veteran incurred additional sun exposure following his separation from service, service connection does not require that the sole etiology of a disease be service-related. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Thus, the Board finds that the opinion provided by Dr. P. is probative and persuasive on the question of whether the Veteran's basal cell carcinoma may be related, at least in part, to his sun exposure in service in Libya. Given the approximate balance of positive and negative evidence, affording all reasonable doubt in favor of the Veteran, the Board finds that service connection for his basal cell carcinoma and residuals of excision of basal cell carcinoma infiltrative types should be granted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, supra. ORDER Entitlement to service connection for basal cell carcinoma is granted. Entitlement to service connection for residuals of excision of basal cell carcinoma infiltrative types is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs