Citation Nr: 18143640 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-24 983 DATE: October 19, 2018 ORDER Entitlement to service connection for basal cell carcinoma, to include as due to herbicide agent exposure is denied. REMANDED Entitlement to service connection for superficial bladder cancer (non-invasive papillary urothelial carcinoma), to include as due to herbicide agent exposure and/or chemical/fuel exposure is remanded. FINDING OF FACT The earliest evidence of basal cell carcinoma is not for more than four decades after separation from service and there is not competent credible evidence of record that it was as likely as not causally related to, or aggravated by, service. CONCLUSION OF LAW The criteria for service connection for basal cell carcinoma and/or residuals of such, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1966 to March 1970. These matters come before the Board of Veterans’ Appeals (Board) from an October 2015 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Milwaukee, Wisconsin. Entitlement to service connection for basal cell carcinoma. The Veteran has been diagnosed with basal cell carcinoma of the skin, which he contends is due to herbicide agent exposure. Initially, the Board notes that the clinical records reflect that the Veteran was diagnosed with basal cell carcinoma in 2011. A May 2012 VA clinical record reflects that there are no new lesions. The Veteran filed for service connection for basal cell carcinoma in June 2015. The record does not reflect that the Veteran has had basal cell carcinoma and/or residuals of such during the pendency of his claim. A service connection claim requires, at a minimum, medical evidence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Assuming arguendo that the Veteran has current basal cell carcinoma or residuals of such, the Board finds that service connection is not warranted. If a veteran served in the Republic of Vietnam during the Vietnam Era, then he is presumed to have been exposed to herbicide agents. See 38 C.F.R. § 3.307(a)(6)(iii). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(e) for such Veterans that served in the Republic of Vietnam and are presumed to have been exposed to herbicide agents. Id. §§ 3.303(b), 3.307. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Veteran’s service treatment records (STRs) reflect that he served in Vietnam during the Vietnam era. He is therefore presumed to have been exposed to an herbicide agent (e.g. Agent Orange.) However, basal cell carcinoma is not among the diseases listed in 38 C.F.R. § 3.309 as being associated with herbicide agent exposure. VA’s Secretary has determined that a presumption of service connection based on exposure to herbicide agents used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. Therefore, service connection on a presumptive basis due to the Veteran’s presumed exposure to an herbicide agent is not warranted. The Board has considered whether service connection is warranted on a non-presumptive basis but finds that it is not. In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). The Veteran has stated that “he is not the first veteran who was exposed to Agent Orange to suffer from [basal cell carcinoma.” This Veteran has not been shown to have the experience, training, or education necessary to make a competent etiology opinion to the claimed disability. Moreover, the assertion that other veterans who have been presumed to have been exposed to an herbicide agent have been diagnosed with basal cell carcinoma is not sufficient to provide a cause and effect finding between the two facts. In addition, it is not sufficient upon to require a VA clinical opinion as the record lacks a competent indication that this Veteran’s disability may be causally related to service. The Veteran was diagnosed in 2011, which is more than four decades after separation from service. His STRs are negative for basal cell carcinoma findings, and he denied skin diseases on his February 1970 Report of Medical History for separation. Moreover, his corresponding February 1970 Report of Medical Examination reflects that his skin was normal upon evaluation (other than a scar). There is no competent credible evidence of record that herbicide exposure, fuel and/or other chemical exposure, and/or any other incident of service is as likely as not the cause of the Veteran’s basal cell carcinoma. In sum, there is not competent credible evidence of record to support a finding that it is as likely as not that the Veteran has a current diagnosis of basal cell carcinoma and/or residuals of such which is causally related to active service, and service connection on a presumptive basis is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND Entitlement to superficial bladder cancer (low grade noninvasive papillary urothelial carcinoma) is remanded. The Veteran was diagnosed with low grade noninvasive papillary urothelial carcinoma in February 2015 which was resected. August 2015 correspondence from Dr. D. Rademacher reflects that the Veteran has not had any recurrences. The Veteran filed a claim for service connection in June 2015. There is no competent credible evidence of record that the Veteran has had a current disability during the pendency of the claim; nevertheless, a VA opinion is warranted, and therefore, the Veteran should also be given the opportunity to submit evidence of a current disability, if any. The claims file includes August 2015 correspondence from Dr. D. Rademacher in which he references a June 2007 Board decision for a claimant other than this Veteran, and notes that the claims are “similar in that they developed bladder cancer and were both exposed to Agent Orange. Their exact relationship cannot be completely confirmed nor can it be denied.” The Board finds that Dr. Rademacher’s opinion is too speculative to be sufficient to allow for service-connection. It is however, sufficient to allow for the Board to request a VA opinion. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all treatment for bladder cancer from March 2015 to present. Make two requests for the authorized records from all noted treatment providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from February 2015 to present for his bladder cancer. 3. Obtain a VA opinion as to whether it is as likely as not (50 percent or greater) that the Veteran’s low grade noninvasive papillary urothelial carcinoma was related to either (a) herbicide exposure or (b) fuel exposure in service. The clinician should consider the pertinent evidence of record to include: a.) the Veteran’s age and the healthiness of his lifestyle at time of diagnosis; b.) the Veteran’s family history of cancer (i.e. his mother had breast cancer); c.) the Veteran’s presumed exposure to an herbicide agent in service; d.) the Veteran’s presumed exposure to fuel in service given his military occupation specialty as an aero ground equipment repairman with the Air Force; and e.) the Veteran’s post-service occupation (i.e. agriculture (hogs and beef cattle), inspector for Toro, electronic repair and   maintenance of alarms, truck driver, sales). The clinician should provide a complete rationale for the opinion proffered. M.C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard