Citation Nr: 1804063 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-24 410A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for squamous cell carcinoma (skin cancer), to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Jones, Counsel INTRODUCTION The Veteran had active service from October 1966 to October 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before the undersigned at a Board videoconference hearing in September 2017. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam during the Vietnam era and is presumed to have been exposed to herbicide agents such as Agent Orange. 2. The clinical evidence of record indicates that the Veteran's squamous cell carcinoma was incurred in service, to include as a result of his exposure to Agent Orange. CONCLUSION OF LAW The criteria for service connection for squamous cell carcinoma have been met. 38 U.S.C. §§ 1110, 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 (VCAA) In light of the favorable disposition below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error with respect to the issues adjudicated in this decision. Applicable Legal Criteria Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). 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. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). In such cases, the disease is 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) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). 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 further 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). 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). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C. § 101(29)(A); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2016); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009) (holding that a Veteran must have actually set foot within the land borders of Vietnam or been present in the inland waters of Vietnam to be entitled to presumptive service connection). 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 decisions 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) (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran asserts that service connection for squamous cell carcinoma is warranted. He initially contended that his squamous cell carcinoma is due to Agent Orange exposure during military service. More recently, the Veteran contended that the condition had its onset during active service. See Correspondence, received 01/17/2014. After reviewing the evidence, and resolving doubt in favor of the Veteran, the Board finds that service connection for squamous cell carcinoma (skin cancer) is warranted. As previously noted, governing law provides for presumptive service connection based on exposure to herbicide agents such as 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 Veteran's service treatment records indicate that he served in Vietnam during the Vietnam era. Thus, he is presumed to have been exposed to herbicide agents during such service. However, squamous cell carcinoma is not listed as a disease associated with exposure to herbicide agents such as Agent Orange under 38 C.F.R. § 3.309(e). As such, presumptive service connection due to herbicide exposure is not warranted. Notwithstanding the foregoing presumptive provision, a claimant is not precluded from establishing service connection for disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). In considering the record in its entirety, and resolving reasonable doubt in favor of the Veteran, the Board concludes that service connection for squamous cell carcinoma disability is warranted. First, the evidence shows a diagnosis of squamous cell carcinoma. Thus, the first element of service connection is satisfied. Next, as detailed herein, the Veteran's service records show that he served in Vietnam during the Vietnam era. Thus, he is presumed to have been exposed to herbicide agents during such service. As such, an in-service event has been established, satisfying the second element of service connection for squamous cell carcinoma. The remaining question, therefore, is whether there is competent medical evidence linking the Veteran's diagnosed squamous cell carcinoma to his active service. The Board observes that in a physician statement dated in September 2012, the physician opined that it was "highly likely" that the Veteran's squamous cell carcinoma was caused or aggravated by his active duty service. In so finding, the physician noted that skin cancer, including squamous cell carcinoma, is mostly caused by sun exposure, which the Veteran would have been exposed to during his tour in Vietnam. Additionally, the condition can also be caused by carcinogens, including Agent Orange. There is no other medical evidence of record to contradict this finding. As set forth above, under the benefit-of-the-doubt rule, for the Veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion cannot be made in this case. Under these circumstances, the record is sufficient to award service connection for squamous cell carcinoma. ORDER Entitlement to service connection for squamous cell carcinoma (skin cancer), to include as due to Agent Orange exposure, is granted. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs