Citation Nr: 18142631 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-42 226 DATE: October 16, 2018 ORDER Entitlement to service connection for squamous cell carcinoma of the head is denied. FINDING OF FACT The Veteran’s squamous cell carcinoma of the head/scalp, with scars, is not shown to be causally or etiologically related to any disease, injury, or incident in service, to include conceded herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for squamous cell carcinoma of the head/scalp, with scars, have not been met; service connection may not be presumed. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from August 1967 to August 1969. His service records show that he served in the Republic of Vietnam. See DD Form 214 (USARPAC, VSM); Service treatment records at p.14 of 39 (APO 96318). This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a July 2014 rating decision by the Regional Office (RO). 1. Entitlement to service connection for squamous cell carcinoma of the head The Veteran asserts that he has squamous cell carcinoma of the head/scalp due to exposure to Agent Orange in Vietnam. See Form 9, May 2015 (translation received September 2017 at p.26 of 43). As an initial matter, because the Veteran’s service records show that he served in the Republic of Vietnam during the Vietnam era, exposure to certain herbicides is presumed. See 38 C.F.R. § 3.307 (2017). However, squamous cell carcinoma is not among those diseases listed in 38 C.F.R. § 3.309(e) for which presumptive service connection is available. Nevertheless, the Veteran may still prove entitlement to service connection for squamous cell carcinoma on a direct basis as due to his active service, including as due to his presumed herbicide exposure. See Combee v. Brown, 5 Vet. App. 248 (1993). The Veteran’s service treatment records show no complaints of any skin problems on the Veteran’s head or scalp. His August 1969 separation report of medical history shows he checked the box denying that he experienced any skin diseases. See Service treatment records at p.10 of 39. His August 1969 separation examination report shows that examination of his head, scalp, and skin was normal. See id. at p.36. Post-service, an October 1969 VA examination report shows “no skin diseases” were found, and examination of the head, face, and neck revealed “no deformities.” See Records, February 1970. A May 2010 VA primary care record shows examination of the skin was negative, with no skin lesions, dryness, or discoloration was specifically noted. See Records, received September 2010 at p.6 of 11. August 2013 private dermatology records from Dr. J.V.C. show the Veteran reported a history of scalp lesions, and a biopsy report shows that biopsies of the Veteran’s vertex (the top or crown of the head) revealed squamous cell carcinoma. See Records, received June 2014 p.2 and 3 of 8; Dorland’s Medical Dictionary, 30th Ed. (2003) at p.2034. A September 2014 VA dermatology treatment record shows a biopsy of the scalp revealed squamous cell carcinoma. See Records, received October 2017 at p.229 of 360. A January 2015 VA treatment record shows the Veteran underwent cryotherapy treatment that month for squamous cell carcinoma of the skin vertex. See Records, received October 2017 at p.213 of 360. A December 2017 VA examination report shows the examiner noted the Veteran’s history of cryotherapy treatment in January 2015 for squamous cell carcinoma lesions of the scalp, and surgical excision in July 2015 of 21 squamous cell carcinoma lesions. The examiner noted the Veteran currently had active squamous cell carcinoma lesions of the scalp. The examiner opined that the Veteran’s squamous cell carcinoma is less likely than not due to herbicide exposure in service. The examiner reasoned that his service treatment records do not contain complaints, treatment, or diagnosis for the condition, that it was not detected until 2015, over 40 years post-service, and that there was not enough evidence to support that the condition is due to herbicide exposure. The examiner also noted that the most common cause of squamous cell carcinoma is chronic UV light exposure/sun exposure. Although it is reasonable that the Veteran had some sun exposure in Vietnam, the ratio of amount of sun exposure in Vietnam compared to sun exposure post-service is very small. The Board acknowledges that the examiner transposed “2015” rather than “2013” as the date of initial diagnosis in error, but the Boards finds this one transcriptional error to be of no significance as, regardless, the Veteran’s squamous cell carcinoma was not diagnosed until 2013, or 44 years after service, which is more than 40 years. In light of all the evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran’s squamous cell carcinoma of the head/scalp, with scars, is caused by his active service. The Board finds the December 2017 VA examiner’s opinion to be the most probative with regard to whether the Veteran’s squamous cell carcinoma of the head/scalp, with scars, was caused by to his conceded herbicide exposure. The examiner provided an adequate rationale for her opinion, and it is not contradicted by any medical evidence of record. There is no record of complaint or treatment in service. Examination of his skin and head/scalp shortly after service in October 1969 was negative. There is no medical evidence tending to indicate that the Veteran’s squamous cell carcinoma of the head/scalp, with scars, is related to his active service, including herbicide exposure. The first record of complaint of symptoms was not until 2013, around 44 years after his separation from active service. Such a prolonged period without complaint weighs heavily against the assertion that the condition had its onset in service or is otherwise related to his active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (2000). To the extent the Veteran himself, as a lay person, opines that his squamous cell carcinoma was caused by herbicide exposure, the Board finds that the Veteran’s opinion carries no probative weight because it is not supported by any rationale. (Continued on the next page)   In summary, the Board concludes that service connection for squamous cell carcinoma of the head/scalp, with scars, is not warranted; as a preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Juliano, Counsel