Citation Nr: 18153613 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-36 679 DATE: November 28, 2018 ORDER Service connection for skin cancer (basal cell carcinoma) is denied. FINDING OF FACT Skin cancer (basal cell carcinoma) was not manifested during the Veteran’s active service or for many years thereafter, and is not shown to be related to his service. CONCLUSION OF LAW Service connection for skin cancer is not warranted. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from July 1966 to June 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Only if the preponderance of the evidence is against the claim, is the claim to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service connection for skin cancer (basal cell carcinoma) is denied. The Veteran contends that he developed skin cancer as a result of exposure to herbicide agents (Agent Orange) in Vietnam in his Application for Benefits dated January 2014. The Veteran served on active duty from July 1966 to June 1968, and his service included service in Vietnam. His service treatment records (STRs) are silent for complaints, treatment, or diagnoses related to skin cancer. The Veteran was not afforded a VA examination regarding his claim of service connection for skin cancer. As is explained below, there is no evidence that his skin cancer is associated with his service. Accordingly, even the low threshold standard for determining when a VA examination is necessary endorsed in McLendon v. Nicholson, 20 Vet. App. 79 (2006) is not met. In January 2014 the Veteran was seen by a private dermatology provider in Green Bay, Wisconsin, who diagnosed him with basal cell carcinoma and recommended treatment. The private provider did not opine regarding the possible etiology of the condition. In a March 2014 medical treatment record a medical professional made note of a cystic mass in the right neck superior to and separate from the thyroid gland which corresponded with the patient’s palpable abnormality, but opined that the etiology was indeterminate. Furthermore, records of private treatment at the Skin Cancer Center in Milwaukee, Wisconsin, shows treatment of skin cancer conditions in April 2014, but does not provide any opinion regarding the etiology of the conditions. In July 2014, the Veteran submitted an information sheet produced by the Mayo Clinic which stated that being exposed to toxic substances can contribute to heightening the risk of contracting skin cancer. It is not in dispute that the Veteran has/has had basal cell carcinoma. Because he served in Vietnam during the requisite time period, he is presumed to have been exposed to herbicides during service; his exposure to Agent Orange in service is also not in dispute. The critical question remaining is whether there is competent evidence of a nexus between his service, to include his exposure to Agent Orange, and the skin cancers. The Veteran’s skin cancers were not manifested in service. His STRs as well as a March 1970 VA examination are silent for complaints, treatment, findings, or diagnosis related to skin cancer. In fact, the VA examination from March 1970 yielded no findings of lesions and the examiner indicated that there were no abnormalities. Consequently, service connection for the skin cancers on the basis that they became manifest in service and persisted is not warranted. The Veteran served in Vietnam and is presumed to have been exposed to herbicides including Agent Orange by virtue of such service, the claimed skin cancers are not listed in 38 C.F.R. § 3.309(e), presumptive service connection under 38 U.S.C. § 1116 is likewise not warranted. What remains for consideration is whether the claimed skin cancers are otherwise shown to be related to the Veteran’s service or environmental exposures therein. The question of whether there is such a nexus is a medical question beyond the scope of common knowledge or capability of resolution by lay observation. It requires medical expertise. See Jandreau v. Nicholson, 492 F.3rd 1372, 1377 (Fed. Cor 2007). The Veteran is a layperson. Therefore, in light of the medical complexity of this issue, his own opinion is not probative evidence in the matter of a nexus between the skin cancers and the alleged risk factors in service. The Veteran has also submitted evidence from the Mayo Clinic regarding the impact of exposure to toxic substances increasing vulnerability of contracting skin cancer. However, the Veteran has not submitted any clinician’s opinion that applies any conclusions in the medical treatise evidence he submitted to his case. There is no direct service connection because no nexus exists between the Veteran’s military service to include herbicide agent exposure and his skin cancer. Furthermore, there is no presumptive service connection because his disability is not listed as a condition in 38 C.F.R. § 3.309 with Agent Orange exposure. In light of the foregoing, the Board finds that the preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. DAVID GRATZ Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Robert Cordingley, Associate Counsel