Citation Nr: 1800764 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-15 264 ) DATE ) RECONSIDERATION ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for basal cell carcinoma, to include as due to in-service exposure to herbicide agents. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel INTRODUCTION The appellant served on active duty in the United States Air Force from July 1956 to July 1982. The appellant was awarded a Bronze Star and served in the Republic of Vietnam. This matter originally came to the Board of Veterans' Appeals (Board) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In a November 2014 decision, the Board denied service connection for basal cell carcinoma. In July 2016, the appellant filed a Motion for Reconsideration of the Board's decision. In October 2016, the Deputy Vice Chairman of the Board ordered reconsideration by an expanded panel of the Board. 38 U.S.C. § 7103(b). In April 2017, the panel remanded the claim to the Agency of Original Jurisdiction (AOJ) for additional evidentiary development. A review of the record shows that the AOJ has complied with all remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017); 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The appellant served in the Republic of Vietnam during the Vietnam era and is legally presumed to have been exposed to herbicide agents. 2. The appellant's basal cell carcinoma was not present in service, did not manifest to a compensable degree within a year of separation, and the most probative evidence establishes that the appellant's current basal cell carcinoma, first evident in 2009, is not otherwise causally related to his active service or any incident therein, to include legally presumed exposure to Agent Orange. CONCLUSION OF LAW The criteria for service connection for basal cell carcinoma have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 Neither the appellant nor his representative has raised any issues with the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. § 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is legally presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection of a chronic disease under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, service connection is presumed for certain diseases if a veteran was exposed to an herbicide agent, such as Agent Orange, during active service if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2017). The enumerated diseases which are deemed to be associated with herbicide exposure are: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes; Hodgkin's disease; ischemic heart disease; chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and certain soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Id. VA's Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,332 (Dec. 27, 2010); see also Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange, 77 Fed. Reg. 47,924 (Aug. 10, 2012). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Exposure to Agent Orange is presumed for veterans who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). Despite the presumptive regulations, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The standard of proof to be applied in a decision on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. §5107(b); see also 38 C.F.R. § 3.102. "This unique standard of proof is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an 'approximate balance of positive and negative evidence.' By tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Analysis The appellant asserts that service connection for basal cell carcinoma is warranted due to presumed exposure to Agent Orange while he was stationed in the Republic of Vietnam. After a review of the evidence, the Board finds that the preponderance of the evidence is against the claim of service connection for basal cell carcinoma. In general, to establish service connection, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The appellant underwent a procedure in 2011 to remove a basal cell carcinoma from his left cheek. The first element of service connection, a current disability, is met for this claim. As previously noted, governing law provides presumptive service connection based on exposure to Agent Orange in service for certain enumerated diseases. A veteran who served on land in Vietnam during the Vietnam era is presumed to have had such exposure. 38 U.S.C. § 1116; 38 C.F.R. 3.307, 3.309. The appellant's records indicate that he served in Vietnam during the Vietnam era. Thus he is presumed to have been exposed to herbicide agents, such as Agent Orange, during such service. As such, the second element of service connection is met. However, basal cell carcinoma is not listed as a disease associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e). As such, presumptive service connection due to herbicide exposure is not warranted. Notwithstanding the forgoing presumptive provision, a claimant is not precluded from establishing service connection for disability due to herbicide agent exposure with proof of direct causation. Combee, 34 F.3d at 1042; Stefl, 21 Vet. App. 120 (2007). The evidence establishes that the appellant's basal cell carcinoma did not manifest during active service, nor within a one year period from his separation from service. The appellant's service treatment records do not contain any indication that he developed any symptoms of his disability in service, nor does he contend otherwise. At no point during his time in service did he report he was having any skin problems. The appellant stated at his VA examination in July 2017 that he did not notice the lump on his face until about a year and a half before it was removed in December 2011, more than 25 years after separation from service in 1982. He also stated that he was not aware of any skin conditions which were present during service. Although the record shows that basal cell carcinoma was not present in service or manifest to a compensable degree within one year of separation, as set forth above, service connection may granted for any injury or disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In that regard, the record on appeal contains conflicting evidence regarding whether there is a causal relationship between the present disability and service. Two medical opinions have been presented in this case. The first opinion was offered by the appellant's treating physician in November 2016. The second was provided by a VA examiner in June 2017. The appellant has also indicated that it is his lay opinion that his current basal cell carcinoma is related to his Agent Orange exposure. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the U.S. Court of Appeals for Veterans Claims (Court) held that the rules on expert witness testimony delineated in the Federal Rules of Evidence provide "important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence." Nieves-Rodriguez, 22 Vet. App. at 302. The first factor to be considered in determining probative value of a medical opinion is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second factor involves consideration of whether the medical expert provided a fully articulated opinion. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of a medical opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In that regard, the November 2016 opinion was offered by the dermatologist who removed the appellant's basal cell carcinoma in December 2011. The appellant's physician stated the appellant has "extensive skin thinning" and that there is a good likelihood that his skin thinning could be from Agent Orange exposure. The examiner did not offer any rationale to support this opinion and merely stated a conclusion. The opinion also does not address the specific issue of the etiology for the appellant's basal cell carcinoma. The Board finds that the opinion is of limited probative value because it is not supported by a reasoned analysis. Nieves-Rodriguez, 22 Vet. App. at 304. The appellant's June 2017 VA examination concluded that his basal cell carcinoma is less likely than not to be related to his active service. The examiner reviewed the entire claims file, including the opinion provided by the appellant's treating dermatologist, and conducted an in-person examination. With regard to the November 2016 opinion, the VA examiner noted that "skin thinning" is a symptom of aging and not of basal cell carcinoma. The examiner also considered the appellant's lay statements that he had been experiencing issues with his skin for years, though not until years after his active service. The examiner concluded that these issues, which include discolorations of his skin on his forearms, are senile purpura and are caused by photo damage (sun exposure) and aging. The examiner also reviewed relevant medical literature on the effects of herbicide agent exposure and explained that it does not support a connection between herbicide agent exposure and basal cell carcinoma. Rather, it supports a finding that the appellant's skin discolorations are more than likely a result of aging and sun exposure for a male of the appellant's race (Caucasian). The examiner also cited to a study called "Veterans and Agent Orange: Update 2014" which was conducted by the Institute of Medicine. This report found that non-melanoma skin cancer, including basal-cell carcinoma, falls into the category of "Inadequate or Insufficient Evidence to Determine an Association," when related to herbicide agent exposure. The Board finds that the June 2017 VA opinion to be of substantial probative weight. The examiner considered all of the relevant lay and medical evidence and provided a well-supported analysis on the issue, to include a discussion of recent medical literature on the topic. The Board has considered the appellant's statements that he believes that his skin conditions are related to his Agent Orange exposure. Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of the basal cell carcinoma is a medical question not subject to lay expertise. See Jandreua v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The condition involves a pathological process that is not readily observable to a layperson. The Board finds that in light of the non-observable nature of the pathology, the issue of the origin of the basal cell carcinoma is a medical question requiring medical training, expertise, and experience. Therefore, the Board finds that the medical opinion provided in the June 2017 VA examination outweighs the appellant's lay opinion. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). After reviewing all the evidence of record, the Board finds that, even granting the appellant the benefit of the doubt, the preponderance of the evidence is against the claim of service connection for a basal cell carcinoma. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53 (1990). ORDER Entitlement to service connection for basal cell carcinoma, to include as due to in-service exposure to herbicide agents, is denied. James L. March Mark D. Hindin Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ____________________________________________ K. Conner Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs