Citation Nr: 1753975 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 15-24 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for basal cell carcinoma, including as a result of herbicide exposure. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1955 to February 1959. This case comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT Basal cell carcinoma was not evident during service or until many years thereafter and is not shown to have been caused by any in-service event, including as a result of herbicide/defoliant exposure during service. CONCLUSION OF LAW Basal cell carcinoma was neither incurred in nor aggravated by service nor may it be presumed to have been. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duty to notify was satisfied by letter dated in May 2012. See 38 U.S.C. §§ 5102, 5103, 5103A (2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Although there is no VA opinion of record as to whether the Veteran's basal cell carcinoma is related to his service, for the reasons stated herein, the Board finds that such is unnecessary because there is no evidence of skin cancer during service, no continuity since service, or contention that the basal cell carcinoma is directly the result of service. Rather, the Veteran's only contention is that his basal cell carcinoma is the result of exposure to herbicides/defoliants, including Agent Orange, while on active duty. As will be discussed, there is no scientific relationship between basal cell carcinoma and prior exposure to defoliants, including Agent Orange. As such, even the low threshold standard for a nexus examination under McLendon v. Nicholson, 20 Vet. App. 79 (2006) is not met. VA's duty to notify is met. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, as identified in 38 C.F.R. § 3.309(a), noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as cancer, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative 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. § 5107(b) (2014); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Lay statements may support a claim for service connection by establishing the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The statutory provision specifically covering Agent Orange is 38 U.S.C. § 1116 (2014). Under 38 U.S.C. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, 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. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 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 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes; non-Hodgkin's lymphoma; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma, ischemic heart disease, "all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia)," and Parkinson's disease. 38 C.F.R. § 3.309(e) (2013). Aside from these presumptive provisions, service connection might be established by satisfactory proof of direct service connection. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In accordance with VA regulations, the National Academy of Science (NAS) issued "Veterans and Agent Orange: Update 2012" (Update 2012). The attached notice explains a determination made by the Secretary, based upon Update 2012 and prior NAS reports, that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for the following health outcomes: Hypertension; Stroke; Cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), and nasal cavity (including ears and sinuses); Cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; Cancers of the digestive organs (esophageal cancer; stomach cancer; colorectal cancer (including small intestine and anus); hepatobiliary cancers (liver, gallbladder and bile ducts); and pancreatic cancer); Bone and joint cancer; Melanoma; Nonmelanoma skin cancer (basal cell and squamous cell); Breast cancer; Cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); Urinary bladder cancer; Renal cancer (kidney and renal pelvis); Cancers of brain and nervous system (including eye); Endocrine cancers (including thyroid and thymus); Leukemia (other than all chronic B-cell leukemias including chronic lymphocytic leukemia and hairy cell leukemia); Cancers at other and unspecified sites (other than those as to which the Secretary has already established a presumption); Reproductive effects (including infertility, spontaneous abortion other than after paternal exposure to TCDD; and - in offspring of exposed people - neonatal death, infant death, stillborn, low birth weight, birth defects (other than spina bifida), and childhood cancer (including acute myeloid leukemia));Neurobehavioral disorders (cognitive and neuropsychiatric); Neurodegenerative diseases (including amyotrophic lateral sclerosis, but excluding Parkinson's disease); Chronic peripheral nervous system disorders (other than early-onset peripheral neuropathy); Respiratory disorders (wheeze or asthma, chronic obstructive pulmonary disease, and farmer's lung); Gastrointestinal, metabolic, and digestive disorders (including changes in liver enzymes, lipid abnormalities, and ulcers); Immune system disorders (immune suppression, allergy, and autoimmunity); Circulatory disorders (other than ischemic heart disease); Endometriosis; Effects on thyroid homeostasis; Hearing loss; Eye problems; and Bone conditions. See Notice, 77 Fed. Reg. 47,924 (Aug. 10, 2012). Basal Cell Carcinoma The Veteran contends that service connection is warranted for basal cell carcinoma that he asserts is the result of his exposure to Agent Orange during service. He states that while stationed in Japan his sleeping quarters were below a cargo bay in which barrels of Agent Orange were stored. He believes that this exposure was responsible for the development of basal cell carcinoma. Review of the Veteran's STRs shows no complaint or manifestation of basal cell carcinoma or other skin disease other than treatment for dermatitis in December 1958 and a rash in January 1959, while the Veteran was on active duty. On examination for separation from service, clinical evaluation of the skin was normal. Post service medical evidence dated in 2014 shows that the Veteran had a medical history of basal cell carcinoma. Correspondence from the National Personnel Records Center (NPRC), dated in June and August 2013, indicates that there is no indication that the Veteran was exposed to defoliants, including Agent Orange, while he was on active duty. The record does not show, nor does the Veteran contend, that the Veteran manifested basal cell carcinoma during service or to a compensable degree within one year of his separation from service. While he believes that his skin cancer is the result of defoliant exposure during service, the NAS Update 2012 report specifically excludes this form of cancer from consideration for presumptive service connection as a result of herbicide exposure. Moreover, there is no evidence that the Veteran was actually exposed to defoliants, including Agent Orange, while on active duty. There has been no medical nexus opinion in the record upon which service connection for basal cell carcinoma may be based. Normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for basal cell carcinoma, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for basal cell carcinoma, including as a result of herbicide exposure, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs