Citation Nr: 18141314 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-24 740 DATE: October 10, 2018 ORDER Service connection for skin cancer, to include basal cell and squamous cell skin cancer, is denied. FINDING OF FACT Skin cancer was not shown in service or for many years thereafter, and there is no competent and probative evidence suggesting the Veteran’s skin cancer is related to service. CONCLUSION OF LAW The criteria for service connection for skin cancer have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to December 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes the Veteran filed a claim for skin cancer. Based on medical evidence presented, the RO thereafter listed the issue as service connection for basal cell carcinoma. Subsequently, the Veteran also claimed service connection for squamous cell skin cancer. In a March 2014 rating decision, the RO declined to take separate action on the squamous cell claim, noting that it is the same claim which was under appeal. The Board has revised the issue on the cover page accordingly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for skin cancer The Veteran seeks service connection for skin cancer, which he asserts was caused by exposure to Agent Orange while serving in Vietnam. The Veteran’s DD Form 214 confirms his service in Vietnam. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in section 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and malignant tumors becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Basal cell carcinoma is not included in the list of diseases presumptively linked to herbicide exposure, and 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. Id. Nevertheless, although the Veteran is not entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994), rev’d in part, Combee v. Principi, 4 Vet. App. 78 (1993). As an initial matter, the Board notes that the Veteran’s private and VA treatment records show a history of basal cell carcinoma, which has been surgically removed from several areas around the Veteran’s face and neck. Accordingly, the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service. Service treatment records show no complaints of or treatment for skin cancer during service. The Veteran’s skin was noted as normal on his separation examination in December 1970. The earliest diagnosis of skin cancer in the record is basal cell carcinoma diagnosed in a November 2002 private treatment record. The Veteran has reported having skin cancer lesions beginning in the early 1980’s, which is roughly 10 years after discharge from service. The Veteran has reported that his dermatologist told him to seek VA treatment because of the possibility that his lesions may have been caused by Agent Orange exposure. However, review of that physician’s records submitted in conjunction with this claim do not reflect an opinion suggesting the Veteran’s skin cancer is related to Agent Orange exposure. "[T]he connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Indeed, there is no medical evidence in the record linking the Veteran’s skin cancer to service. Moreover, the Board notes that in accordance with section 3 of the Agent Orange Act of 1991, Pub. L. 102-4, 105 Stat. 11, the Secretary has entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. In the 2012 report, NAS concluded that there remains inadequate or insufficient evidence of an association between exposure to herbicides and the development of basal cell, squamous cell, and melanoma skin cancers. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20308 (Apr. 11, 2014). Thus, NAS has not found a link between skin cancer and herbicide exposure, and there is no competent medical evidence of record suggesting such condition is related to herbicide exposure. While the Veteran believes that his skin cancer is related to his service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render an opinion as to the etiology of skin cancer. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of skin cancer requires medical expertise to determine. Thus, the Veteran’s opinion as to the etiology of his skin cancer is not competent medical evidence. As a final matter, the Board notes the Veteran has not received a VA examination pursuant to his service connection claim for skin cancer. However, there is no evidence of skin cancer in service or for many years after service. Moreover, the record does not contain any competent evidence suggesting a possible association between skin cancer and herbicide exposure or any other in-service event. Under these circumstances, there is no duty to provide a medical examination or to obtain a medical opinion. See 38 C.F.R. § 3.159(c); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would “eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran’s disability case”). In sum, there is no competent and probative evidence showing skin cancer during service or within one year following discharge from service, and no medical opinion of record suggesting his skin cancer is related to service. Accordingly, the preponderance of the competent and probative evidence is against the Veteran’s claim, and service connection for skin cancer is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim for, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. N. Wilson, Law Clerk