Citation Nr: 1804746 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-15 823A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for basal cell carcinoma. ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) from a March 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in March 2011, a statement of the case was issued in April 2014, and a substantive appeal was received in May 2014. The Veteran requested a Board hearing, but withdrew his request in October 2015. In April 2014, service connection was established for posttraumatic stress disorder (PTSD), and a 50 percent rating was assigned, effective August 23, 2010. In February 2015, the Veteran filed a notice of disagreement with the disability rating assigned. A statement of the case was issued in June 2017, but a substantive appeal was not received. Thus, this issue is not in appellate status. FINDING OF FACT The weight of the evidence is against a finding that basal cell carcinoma manifested during the Veteran's period of active service, within a year of separation from active service, or is otherwise due to active service, to include herbicide exposure. CONCLUSION OF LAW The criteria for service connection for basal cell carcinoma have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has considered the Veteran's claim and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Criteria & Analysis The Veteran asserts that he has basal cell carcinoma, which he asserts is due to herbicide exposure. The Veteran was not afforded a VA examination with regard to his claimed basal cell carcinoma and the lack of necessity in undergoing such examination will be discussed below. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). An award of service connection based solely on continuity of symptomatology only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The second and third Caluza elements may also be satisfied under 38 C.F.R. § 3.303(b), by the submission of (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1998). Additionally, for veterans who have served 90 days or more on or after December 31, 1946, certain chronic diseases, such as malignant tumors, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). The evidence of record reflects that the Veteran had active service in the Republic of Vietnam during the applicable period, thus it is presumed that he was exposed to herbicides during active service. 03/09/2015 Certificate of Release or Discharge from Active Duty. It is provided that 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, with an exception not applicable to this case. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, early-onset peripheral neuropathy, Parkinson's disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma. 38 C.F.R. § 3.309 (e); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010); see 78 Fed. Reg. 173, 54763-66 (Sept. 6, 2013). Basal cell carcinoma is not among the diseases associated with exposure to herbicides agents. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for melanoma and non-melanoma skin cancer (basal cell and squamous cell). See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258 -21260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010); National Academies of Science, Engineering, Medicine, Veterans and Agent Orange: Update 2014, at 907-08 (listing "[n]on-melanoma skin cancer (basal-cell and squamous-cell)" as part of the "Inadequate or Insufficient Evidence to Determine an Association" category, available at https://www.nap.edu/read/21845/chapter/16#907. Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155, 160 (1997). In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it pertains to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See 38 C.F.R. § 3.159(a)(2) ("Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person."). 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 Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A diagnosis of basal cell carcinoma has been established by the record. An October 1986 private treatment record reflects treatment for and a diagnosis of basal cell carcinoma/basal cell epithelioma on the right mid forehead and left shoulder. The condition had been present for two years. 01/03/2011 Medical Treatment Record-Non-Government Facility at 4. Specimens showed basal cell carcinoma of the right mid forehead; lichenoid solar keratosis of the left shoulder; and, partially superficial basal cell carcinoma of the left abdomen. Id. at 20. A November 1986 record reflects a diagnosis of moderately differentiated squamous cell carcinoma affecting the left lower temple. Id. at 19. A December 1986 record reflects a diagnosis of basal cell epithelioma affecting the right eyebrow. Id. at 18. A February 1987 record reflects that the Veteran underwent a shave biopsy of the left lower eyelid; basal cell carcinoma was diagnosed. Id. at 17. In February 2001, the Veteran sought treatment for a mole on the top of his scalp and basal cell carcinoma was diagnosed. Id. at 11. The first element of service connection - a diagnosis of basal cell carcinoma - has been established. The Veteran does not assert that basal cell carcinoma manifested during his period of active service. Rather, the Veteran asserts that he has a basal cell carcinoma due to exposure to herbicides agents. Notwithstanding this, the Board reviewed the Veteran's service treatment records and they do not reflect any complaints, treatment, or diagnoses related to basal cell carcinoma. With regard to the Veteran's assertion that such condition is due to exposure to herbicides, the Board observes that the Veteran has not submitted any competent evidence in support of this claim. While acknowledging that the Veteran was exposed to Agent Orange during service, there is no evidence to support a finding that basal cell carcinoma is due to such exposure and such disability does not warrant presumptive service connection. The Veteran does not otherwise have the requisite medical expertise to find that his basal cell carcinoma is due to service or due to Agent Orange exposure. His opinion in this regard is not competent, given the complexity of the medical question involving the etiology of a skin cancer, to include the etiology of the basal cell carcinoma and lipomas in question. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (recognizing that orthopedic ACL tear is too medically complex for lay evidence to competent to diagnose); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (stating that lay persons not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). As the Veteran's basal cell carcinoma was not shown in service, and the claims file contains no indication of a causal link between his basal cell carcinoma and active service, to include exposure to herbicide agents, the Board finds that the preponderance of the evidence is against the claim of service connection. The Board declines to obtain a medical nexus opinion with respect to the issue of entitlement to service connection, because there is no evidence of pertinent disability in service, and no evidence indicating a relationship between his service, to include herbicide exposure, and basal cell carcinoma. Indeed, while basal cell carcinoma manifested approximately 14 years after separation from service, there is no indication that this disability is associated with service. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also Charles v. Principi, 16 Vet. App. 370 (2002). In view of negative service treatment records, and the lack of diagnosis of this disability or any manifestations for many years post-service, any opinions relating this disability to service would certainly be speculative. Moreover, the evidence of record does not suggest that his basal cell carcinoma is due to herbicide exposure. Service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. The duty to assist is not invoked, even under McLendon, where "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C. § 5103A(a)(2). The act of filing a claim and simply stating the condition is related to service is not enough to trigger the duty to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Courts have held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. The Board finds that after reviewing the record, it contains only conclusory, generalized lay statements regarding a connection between, for example, basal cell carcinoma and exposure to herbicide agents. Consequently, a VA examination is not warranted for service connection for a basal cell carcinoma. McLendon, 20 Vet. App. at 83 The Board notes that malignant tumors are a chronic disease subject to special presumptive provisions under 38 C.F.R. § 3.307, 3.309. However, such was not manifested within the first post-service year and thus such provisions are inapplicable here. As a chronic disease under 38 C.F.R. § 3.309(a), credible evidence of continuity of symptomatology could enable a grant of service connection even in the absence of favorable nexus evidence. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Thus, the evidence weighs against a finding of continuity of symptomatology and an award of service connection solely on this basis is not appropriate here. In sum, the Board concludes that the preponderance of the evidence is against the claim of service connection for basal cell carcinoma. It follows that the Board is unable to find such a state of approximate balance of the positive evidence to otherwise warrant a favorable decision. 38 U.S.C. § 5107(b). ORDER Service connection for basal cell carcinoma is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs