Citation Nr: 1722294 Decision Date: 06/15/17 Archive Date: 06/29/17 DOCKET NO. 10-40 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for basal cell carcinomas, claimed as melanoma, to include as secondary to exposure to herbicide agents (Agent Orange). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Edwards, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1964 to January 1968 and from June 1970 to June 1988. This appeal to the Board of Veterans' Appeals (Board) is from a December 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In March 2014 and September 2016, the Board remanded this matter to the RO for addendum opinions from the VA medical examiner. The requested development has been substantially completed, and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran had active service in the Republic of Vietnam and is presumed to have been exposed to herbicide agents during active service. 2. VA has not found a statistically significant association between exposure to herbicide agents and basal cell carcinoma to create a presumption. 3. The Veteran's basal cell carcinoma is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the Veteran's period of active military service, to include herbicide exposure. CONCLUSION OF LAW 1. The criteria for service connection for basal cell carcinoma have not been met. 38 U.S.C.A. §§ 1112, 1113, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has complied with the duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board also finds substantial compliance with the March 2014 and September 2016 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection The Veteran was diagnosed with basal cell carcinoma. The Veteran alleges that his basal cell carcinoma is the result of his in-service exposure to herbicide agents, to include Agent Orange, and therefore, should fall under the presumption for service connection due to exposure to herbicide agents. Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303 (a), 3.304. In general, service connection requires competent evidence showing: (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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). As an initial matter, the evidence does not show, and the Veteran does not contend, that his basal cell carcinoma is related to service in any manner other than as a result of his alleged exposure to Agent Orange. The Veteran's service treatment records reveal no complaints or findings of basal cell carcinoma during service. The Veteran instituted a claim for service connection for melanoma in January 2009. A May 2014 VA examination noted that the Veteran reported that he had had a melanoma removed in 1991 on right side of chest. The Veteran was diagnosed with basal cell carcinoma by a private physician in 2009 when he had further lesions removed. Based on the records, the initial instance of removal was three years after separation from his second period of service; and diagnosis was approximately 21 years after separation from service. There is no evidence of record, lay or medical, suggesting that the Veteran's basal cell carcinoma is related to service on a basis other than the alleged exposure to herbicide agents. Accordingly, a preponderance of the evidence is against the claim for service connection for basal cell carcinoma on a direct basis or on a presumptive basis as a chronic disease pursuant to 38 C.F.R. § § 3.307 (a)(6), 3.309 (a). 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 that section, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Basal cell carcinoma is not listed in § 3.309 (e). The Veteran contends that melanoma is a type of soft tissue sarcoma and, therefore, his basal cell carcinoma is the result of exposure to Agent Orange. He disagrees with available scientific and medical evidence which denies there is a direct correlation between basal cell carcinoma and herbicide exposure. He states that basal cell carcinoma is known to be caused by exposure to dioxin, one of the primary components of Agent Orange. Although the Veteran's statements reflect his honest belief, he is not shown to have the training or the expertise to competently provide an opinion as to whether his disability is etiologically related to his presumed exposure to herbicide agents. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Additionally, the Veteran has offered no support for his assertion other than his own statements. Although the Veteran is competent to testify as to observable symptoms, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran's lay assertions that his skin disability is related to exposure to Agent Orange are afforded no probative weight in the absence of evidence that the Veteran has the expertise to render opinions about medical matters. See Jandreau, 492 F. 3d 1372 (Fed. Cir. 2007). In June 2009, the Veteran reported spots on his legs going back 20 years to a dermatologist who diagnosed basal cell carcinoma. Private physicians treated the Veteran's basal cell carcinoma in August and September 2009, October 2011, and May 2014. A history of skin cancer is recorded in the Veteran's records. The only risk factors noted include greater than five sunburns. In a March 2014 opinion, a VA examiner opined that it was "less likely than not that this veteran's skin cancer is caused by Agent Orange." First, the examiner noted that basal cell carcinoma is not a soft tissue sarcoma, and explained why. Next, the examiner listed chronic sun exposure, exposure to radiation, fair skin, sex, age, immune-suppressing drugs, exposure to arsenic, and inherited syndromes that cause skin cancer as factors that increase the risk of basal cell carcinoma. Finally, she observed that the Veteran was fair skinned, male, and 67 years old, and therefore, "likely to have other risk factors which have caused him to develop skin cancer." The examiner further reported that there is no published data linking Agent Orange to skin cancer and opined that basal cell carcinomas are typically caused by sun exposure. In addendum opinions dated December 2016 and January 2017, the examiner confirmed her previously stated opinion and further opined that, though there are many causes of skin cancer, there is no objective evidence that the Veteran's basal cell carcinoma was caused by service in any way. After weighing all the evidence, the Board finds the greatest probative value lies in the VA examiner's opinion. The opinion by the VA examiner was fully grounded in the medical literature and was based upon a comprehensive review of the claims file and medical history. The Veteran's reported history was adequately considered. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The VA examiner listed specific factors that placed the Veteran at risk for basal cell carcinoma, and the Veteran's private physician reported that the Veteran's history of sun burns (chronic sun exposure) placed him at risk. The examiner is shown to have reviewed and considered the pertinent evidence of record and to have provided adequate rationale for her opinion. Accordingly, the Board finds that the preponderance of the evidence is against a finding that basal cell carcinoma was incurred in or is related to service. Because there is no evidence of basal cell carcinoma or relevant symptoms in service or during the one-year period following separation from service, service connection for basal cell carcinoma is not established by way of chronicity during service or a continuity of symptoms after service. See 38 C.F.R. §§ 3.303 (b), 3.307. Additionally, because the Veteran offered no support for his opinion that his basal cell carcinoma results from exposure to Agent Orange and basal cell carcinoma is not a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309 (e), service connection is not established based on the presumption of exposure to herbicide agents. See 38 C.F.R. § 3.309 (e). In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. Although grateful for the Veteran's honorable service, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b); Ortiz v. Princippi, 274 F. 3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for basal cell carcinoma is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs