Citation Nr: 1805579 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-25 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a basal cell carcinoma, to include residual scars. REPRESENTATION Veteran represented by: Sarah Schauerte Reida, Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1976 to September 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Washington, DC, Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is now with the Roanoke, Virginia, RO. Following the most recent readjudication of this appeal by the RO in the February 2017 Supplemental Statement of the Case (SSOC), the Veteran submitted additional evidence. The Veteran did not accompany the evidence with a waiver of RO jurisdiction; however, such waiver is not necessary, as the Veteran perfected his appeal after February 2013, and waiver of initial RO consideration of new evidence is not required with respect to evidence submitted by the Veteran and his representative. See 38 U.S.C.S. § 7105(e) (2017). The Veteran testified before the undersigned Veterans Law Judge at a July 2017 Central Office hearing in Washington, DC. A transcript of this hearing is of record. FINDINGS OF FACT The Veteran's basal cell carcinoma with residual scars is causally related to his active-duty service. CONCLUSION OF LAW The Veteran's basal cell carcinoma with residual scars was incurred in or due to his active duty service. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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); 38 C.F.R. § 3.102. 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). A review of the record reveals that the Veteran was diagnosed with basal cell carcinoma on his left cheek and underwent removal surgery in December 2012. See May 2014 VA Examination; see also July 2017 Dr. M.T. medical opinion; see also June 2017 Dr. D.T. letter March 2017. The Veteran has undergone at least two additional basal cell carcinoma biopsies on his face. Id. The Veteran asserts that his basal cell carcinoma is due to excessive exposure to the sun without proper skin protection while in service. See July 2017 Hearing Transcript. During his July 2017 Board hearing, the Veteran reported that the majority of his active service in the United States Coast Guard (USCG) was spent on small and large ships, which required him to be on deck for a minimum of 10 hours per day. He stated that the government-issued lotion provided to him did not have sun protection factor (SPF) and that his face was the predominate portion of his body subjected to sunrays while on active duty. The Veteran estimated that, during his 28 years of active service, he had sunburn on his face at least 70 percent of the time. He described the sunburn as covering the majority of his face with small blisters above the cheek area at times. Turning to the question of whether there is a nexus, or link, between the current shown disability and service, the Board finds that the preponderance of the evidence supports the Veteran's claim for service connection for basal cell carcinoma, to include residual scars. While the Veteran's service treatment records are negative for any complaints of or treatment for a skin disability, the Veteran stated that he did not report these sunburns or seek medical treatment for the same for fear of reprisal or being assigned extra duty. See July 2017 Hearing Transcript. He stated that it was the "norm" for seamen not to report their sunburn. A June 2017 buddy statement from R.C. stated that he served with the Veteran from August 1976 to September 1978. R.C. reported that that he and the Veteran's duties required a minimum of eight to ten hours on deck in daylight hours. He stated that during every patrol in the Caribbean Sea, the Veteran was constantly sunburned like many others due to the nature of their daily responsibilities. He stated that the Veteran was so sunburned at times, he had blistering. However, he was unable to report the sunburn due to fear of reprisal. R.C. stated that, like virtually every other member aboard the ship, the Veteran did not go to sick bay for his sunburn. The Veteran was afforded a VA medical opinion in May 2014. The examiner reviewed the claims file and stated that the Veteran had been treated for basal cell carcinoma, which was related to chronic exposure to the sun. The examiner opined that the Veteran did not have specific excess sun exposure during service beyond the usual exposure of outdoor work. Therefore, the examiner concluded that it was less likely than not that the Veteran's basal cell carcinoma was caused by his military service and more likely due to cumulative sun exposure over a lifetime. . Although the VA examiner provided a negative nexus opinion, that specific finding was essentially based on the assumption that service connection requires that in-service sun exposure be the sole contributing factor to the Veteran's currently diagnosed basal cell carcinoma. In the provided rationale, which is the portion of the report most relevant to the Board's analysis, the VA examiner stated that "it is not plausible, and not possible to determine that exposure from military service, and not from the years prior to or the years after, that is the risk that lead to the development of the cancer." See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (1998) (the most probative value of a medical opinion comes from its reasoning). This rationale indicates that while the Veteran's in-service sun exposure was not the sole cause of his currently diagnosed basal cell carcinoma, it was a contributing factor, as it was part of his cumulative lifetime sun exposure. The Veteran submitted two private positive nexus opinion prior to his July 2017 Board hearing. In his July 2017 medical opinion and affidavit, Dr. M.T., a former Chief Medical Officer and Surgeon General of the USCG, attested that sunburn to the face and hands was the norm for service members with such operational experience and assignments as the Veteran. He further stated that there was a general understanding by service members for many years that they were at risk of being brought upon charges of "damaging government property" for any episode of reportable sunburn. Additionally, he stated that there was prevailing pressure that reportable sunburn reflected negatively on the unit command for not taking proper care of the unit members. He reported that these two influences led to sunburn almost never making an appearance in a crewmember's medical record despite sunburn being common occupational hazard. Dr. M.T. opined that the Veteran's currently diagnosed basal cell carcinoma was caused by his in-service prolonged sun exposure. The private examiner considered the Veteran's history and medical records and opined that it was more likely than not that the Veteran's basal cell carcinoma was related to service due to excessive sun ray and ultra-violet (UV) exposure. In her June 2017 medical opinion, Dr. D.T. concurred with Dr. M.T. that it was more likely than not that the Veteran's basal cell carcinoma was due to excessive sun ray and UV exposure during service. Additionally, after reviewing the December 2012 VA dermatology pathology report, Dr. M.T. opined that the basal cells that mutated to cause the Veteran's cancer were over 20 years old. She stated that although the Veteran's basal cell carcinoma did not have its onset during active service, his significant operational experience in high-UV environments caused injury and the resultant disease (basal cell carcinoma) was inextricably intertwined. The Board finds that the private nexus opinions are the most probative evidence in support of the Veteran's claim. Given the medical and lay evidence outlined above, the Board concludes that the Veteran's basal cell carcinoma and residuals thereof, are causally related to his military service, and service connection is warranted. ORDER Service connection for basal cell carcinoma, to include residual scars, is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs