Citation Nr: 18145843 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-40 841 DATE: October 30, 2018 ORDER Service connection for squamous cell carcinoma is denied. FINDING OF FACT The preponderance of the evidence fails to support a diagnosis of soft tissue sarcoma; the Veteran’s diagnosed squamous cell carcinoma was not shown in service or for many years thereafter and not shown to be related to service, including herbicide exposure therein. CONCLUSION OF LAW The criteria for service connection for squamous cell carcinoma have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the Army from June 1967 to June 1970. This matter is on appeal to the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of a regional office of the Department of Veterans Affairs (VA). Service Connection 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 military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires competent 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. For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. §1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). The applicable criteria provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Squamous Cell Carcinoma The Veteran asserts that his current skin condition diagnosed as squamous cell carcinoma is due to exposure to herbicide agents in service. Specifically, he states that while stationed in Thailand from 1967 to 1968, “he was a construction engineer and operated heavy equipment” and was “exposed to agent orange due to his duties on or near base perimeter.” See Notice of Disagreement dated April 2015. His claim for service connection for squamous cell carcinoma was denied by rating decision of April 2015. By way of history, his previous claims for entitlement to service connection for skin cancer were denied on the basis of no current diagnosis of soft tissue sarcoma. See April 2013 and January 2015 rating decisions. The Board initially notes that while the Veteran served in the Vietnam Era, his service personnel records confirm that he has no documented deployment to or visitation in the Republic of Vietnam or has any exposure to herbicides, including Agent Orange. As to his assertion of being exposed to Agent Orange while in Thailand, the Board notes that the Veteran’s military occupational specialty is not listed among those recognized to have served near the air base perimeter, such as a security policeman, security patrol dog handler, a member of a security police squadron or otherwise operated near or in an area where herbicides were known to have been applied. Moreover, corroborating evidence of actual, direct exposure to herbicides in service is also not established. Thus, he cannot be presumed to have been exposed to herbicides. With that said, however, even if herbicide exposure was presumed, the Board notes that the Veteran’s diagnosed squamous cell carcinoma is not listed as a qualifying skin condition associated with herbicides. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Meaning, squamous cell carcinoma is not one of the chronic diseases as listed to qualify for presumptive service connection. For instance, soft tissue sarcoma is a cancer arising from connective tissue, such as muscle or bone, which is listed as a qualifying condition. In the Veteran’s case, squamous cell carcinoma is not considered a soft-tissue sarcoma, but a type of skin cancer that affects the epidermal, the outmost layers of the skin. Thus, presumptive service connection is not for application here. Additionally, as will be explained below, there is also no probative evidence of a nexus between the Veteran’s service and squamous cell carcinoma. In fact, private treatment records indicate that squamous cell carcinoma was first treated and diagnosed in April 2007, approximately 37 years after separation from service. See JCMG Dermatology letter from A.L.A., M.D. dated April 2007. Private dermatology records show that the Veteran had a skin biopsy of the left cheek which showed squamous cell carcinoma. Medical records are also absent for any ongoing treatment or complaints thereafter. VA treatment records of March 2014 notes the Veteran as a “new patient to VA dermatology here after [squamous cell carcinoma] removal of the left temple” in November 2013 and documents a few other spots the Veteran seeks consultation. See Lake Dermatology and Med Spa records dated November 2013 and VA treatment records dated March 2014. The Board notes that no VA examination or medical opinion was obtained in relation to the issue of service connection for squamous cell carcinoma. In determining whether the duty to assist requires the VA to provide such examination or opinion, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board further finds no reasonable possibility that a VA examination would aid in substantiating the service connection claim for squamous cell carcinoma. Although the Board acknowledges that the Veteran’s medical records show treatment for skin condition of squamous cell carcinoma, there is no objective evidence of record relating such skin condition to service. Further, there is no evidence of record to show that squamous cell carcinoma had onset during active service or within one year of separation from active service. In fact, the Veteran’s service treatment records are absent of any treatment, findings, or diagnosis of a skin disorder. Further, treatment records after separation fail to demonstrate persistent or recurrent symptoms of a skin condition. Lastly, there is simply no competent evidence of record even suggesting that squamous cell carcinoma may be associated with service. In the absence of required elements above, the Board observes that VA has no duty to provide an examination or obtain an opinion in this case. See 38 U.S.C. § 5103A(a). Moreover, the U.S. Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary’s obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability. See McLendon, 20 Vet. App. at 81. This standard has not been met in this case, and there is sufficient competent medical evidence of record to make a decision on the Veteran’s claim herein. As demonstrated above, there is simply no competent medical evidence to support a finding of an etiological relationship between the Veteran’s current squamous cell carcinoma and military service. Additionally, the Board finds persuasive the absence of competent medical evidence to substantiate a claim for service connection in this case. As such, service connection for squamous cell carcinoma is not warranted. Lastly, consideration has been given to the Veteran’s statements of the etiology of his claimed skin condition as related to service; essentially that his squamous cell carcinoma is due to herbicide exposure. However, as a layperson, without any demonstrated, specialized knowledge concerning the etiology of these disabilities, his allegations are not competent evidence of a medical nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Veteran is not competent to independently opine of exposure to Agent Orange as the specific etiology of a claimed condition, because this involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Consequently, the Veteran’s lay statements of nexus opinion cannot constitute competent medical evidence upon which to grant a claim for service connection in this case. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for squamous cell carcinoma. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel