Citation Nr: 18147037 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 17-07 387 DATE: November 2, 2018 ORDER Entitlement to service connection for skin cancer, to include as secondary to exposure to asbestos in service, is denied. REMANDED Entitlement to service connection for heart bypass is remanded. FINDING OF FACT The weight of the evidence shows that the Veteran’s skin cancer did not manifest during service and is not a result of in-service exposure to asbestos. CONCLUSION OF LAW The criteria for entitlement to service connection for skin cancer, to include as secondary to in-service asbestos exposure, have not been met. 38 U.S.C. §§ 1111, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty with the United States Army from February 1962 to January 1965. This case was most recently before the Board in September 2017, at which time it was remanded for further development. The case has since been returned to the Board for appellate review. Entitlement to service connection for skin cancer, to include as secondary to exposure to asbestos in service Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disability 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 establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). An alternative method of establishing the second and third elements of service connection for those disabilities identified as “chronic” under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was “noted” during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran asserts that he has skin cancer caused by in-service exposure to asbestos, as found in the buildings where he worked and lived, and in the brake linings and clutch pressure plates of the vehicles on which he worked. The Veteran was afforded a VA examination in connection with his claim in December 2017. The examiner found that the Veteran had a squamous cell carcinoma removed from the back of his left calf. Therefore, the Veteran meets the first criteria of service connection, a current disability. However, the evidence does not support a finding that the Veteran’s skin cancer is etiologically related to service, to include exposure to asbestos therein. As noted in the September 2017 remand order, the Board finds that there was in-service exposure to asbestos. Nevertheless, the Veteran’s service treatment records (STRs) are silent for any complaints of or treatment for a malignant skin condition in service. Private medical treatment records show the Veteran was diagnosed with a squamous cell carcinoma on the left calf in June 2014, which was removed in July 2014. The record is silent for any malignant skin conditions prior to 2014, and there is no indication of any recurrence since the 2014 removal. As previously noted, the Veteran was afforded a VA examination in connection with his claim in December 2017. The examiner noted that the Veteran had a squamous cell carcinoma removed from his left calf but determined that the carcinoma was less likely than not incurred in or caused by service. In reaching this conclusion, the examiner noted that the chief risk factor for squamous cell carcinoma is cumulative sun damage to the skin. He further noted an absence of medical literature linking such a skin condition to asbestos exposure. The examiner found that the Veteran had skin lesions on other parts of the body but determined they were benign in nature. Overall, after careful consideration of the evidence of record, the Board concludes that the weight of the evidence is against a finding that the Veteran’s skin cancer had its onset in service or is etiologically related to asbestos exposure therein. In reaching this conclusion, the Board has considered the Veteran’s lay testimony connecting his skin cancer with in-service asbestos exposure. However, while the Veteran is competent to report his exposure to asbestos in service, as well as symptoms and history of treatment, he has not been shown capable of making medical conclusions on complex issues such as the nature and etiology of his skin cancer. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Ultimately, the Board finds the December 2017 VA examiner’s opinion to be the most probative evidence of record concerning the nature and etiology of the Veteran’s skin cancer, and this opinion ultimately outweighs the Veteran’s contentions in this regard. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the expert’s knowledge and skill in analyzing the data, and the medical conclusion the expert reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). In this case, the examiner who performed the December 2017 VA examination reviewed the Veteran’s claims file, examined the Veteran in person, and relied on his medical training, skill, and accepted medical principles in reaching conclusions supported by a detailed rationale. Additionally, his opinion is consistent with the evidence of record. Therefore, based on the foregoing, the Board finds that entitlement to service connection for skin cancer is not warranted. REASONS FOR REMAND Entitlement to service connection for heart bypass is remanded. Although the Board regrets the delay, remand is necessary in order to ensure there is a complete record on which to decide the Veteran’s claim. In its September 2017 remand instructions, the Board directed that the Veteran be scheduled for a VA examination concerning the nature and etiology of his heart bypass surgery. In determining the likelihood that the need for such surgery was caused by service, the Board specifically asked that the examiner discuss medically known and theoretical causes of heart disease leading to coronary artery bypass grafting and to describe how such a condition generally presents or develops in most cases, then discuss the facts of the Veteran’s case in comparison. The Veteran was afforded the requested VA examination in December 2017. While the examiner detailed the history of the Veteran’s heart condition, the Board finds that he did not adequately address its questions concerning the likelihood that the need for heart bypass surgery was caused by service. For instance, the examiner noted that the Veteran’s in-service complaints of and treatment for chest pain were “atypical for angina,” and that there was “no mention of [h]ypertension” on the Veteran’s discharge examination, but he did not explain how these facts were relevant to his conclusion that the need for the Veteran’s heart bypass was less likely than not related to service. The examiner did not discuss the medically known and theoretical causes of heart disease leading to coronary artery bypass grafting, nor did he describe how such a condition presents or develops in most cases compared to the Veteran’s case. Therefore, remand is required for an addendum opinion that properly addresses these questions. Accordingly, the matter is REMANDED for the following actions: 1. Return the Veteran’s claims file to the examiner who conducted the December 2017 VA examination, if available. The claims file and a copy of this Remand must be made available to and reviewed by the examiner, and the examiner should note such review in his report. Any and all studies, tests, and evaluations deemed necessary by the examiner should also be performed. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s present heart bypass was caused or aggravated by his active service. In determining the likelihood that the need for cardiac surgery was caused by service as opposed to some other cause, the examiner should discuss medically known and theoretical causes of heart disease leading to coronary artery bypass grafting and describe how such a condition generally presents or develops in most cases and compare it to the Veteran’s evidence. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page)   2. Then, readjudicate the Veteran’s claim. If the claim remains denied, issue a Supplemental Statement of the Case and provide the Veteran and his representative opportunity to respond. Then, return the claim to the Board for further appellate review. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel