Citation Nr: 18160180 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 17-06 423 DATE: December 27, 2018 ORDER Entitlement to service connection for basal cell carcinoma of the skin, claimed as skin cancer due to Agent Orange exposure, is denied. FINDING OF FACT Skin cancer is not among the disabilities recognized by the VA as etiologically related to herbicide agent (to include Agent Orange) exposure. The preponderance of evidence is against a conclusion that basal cell carcinoma of the skin, claimed as skin cancer due to Agent Orange exposure. CONCLUSION OF LAW The criteria for service connection for basal cell carcinoma are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from March 1970 to December 1971, which included service in the Republic of Vietnam. This matter is on appeal from an April 2016 rating decision for service connection for basal cell carcinoma of the skin, claimed as skin cancer due to Agent Orange exposure. An August 2017 hearing was scheduled, but the Veteran waived his right to testify in June 2017. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). Certain chronic diseases (such as malignant tumor) shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (one year for malignant tumor), even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. 3.307(a)(6) are met. 38 C.F.R. 3.309(e). A veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. 38 C.F.R. 3.307(a)(6), (d); 3.309(e). Therefore, if a veteran falls under the requirements of the herbicide agent presumption and has a current diagnosis of one of a list of specified diseases, the VA will presume in-service incurrence and a causal relationship (nexus), and grant service connection. Even in such cases, however, a veteran must have a current diagnosis of a qualifying disease. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Basal cell carcinoma, claimed as skin cancer due to Agent Orange exposure The Veteran contends his basal cell carcinoma is a result from Agent Orange exposure during his time in active duty service. The Veteran was diagnosed with basal cell carcinoma in July 2011. Pertinent to the Veteran’s assertions as to Agent Orange exposure, as he served in Vietnam during the Vietnam era, his exposure to herbicide agents, to include Agent Orange, is presumed. As such, the in-service injury or disease requirement is met. However, skin cancer (to include basal cell carcinoma) is not a recognized disease associated with herbicide agent exposure. See 38 C.F.R. § 3.309. Therefore, presumptive service connection based on presumed herbicide agent exposure is not available to the Veteran. Although the Veteran has not established entitlement to service connection on the presumptive basis noted above, he is not precluded from establishing service connection on a direct basis. See 38 U.S.C.A. § 1113 (b); 38 C.F.R. § 3.303 (d). In this case, however, the record presents no other basis for an award of service connection. The Veteran’s service treatment records show that basal cell carcinoma was not present in service, or for many years thereafter. There is no specific evidence or argument in the Veteran’s claims file indicating that the Veteran experienced continuity of symptoms of basal cell carcinoma, during and since service. See 38 C.F.R. § 3.303 (b). The first evidence of basal cell carcinoma was in July 2011, more than 30 years post discharge. The fact that the post service record does not document any evidence of basal cell carcinoma until many years after service is a factor that tends to weigh against an award of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Neither the Veteran nor his representative has either presented or alluded to the existence of any contrary medical evidence or opinion that supports a relationship between the Veteran’s basal cell carcinoma and service, to include any Agent Orange exposure therein. The Board further finds VA was not obliged to provide an examination or obtain an opinion on the Veteran’s claimed condition because there was no competent evidence that shows the Veteran’s basal cell carcinoma condition manifested in service; no competent evidence indicating a link between the Veteran’s basal cell carcinoma condition and service, to include any in-service exposure; and no lay evidence suggesting that the Veteran’s basal cell carcinoma had its onset in service or is otherwise related to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d), 38 C.F.R. § 3.159 (c)(4)(i). As the threshold for finding that the evidence of record indicates that the claimed disability or symptoms may be related was not met, VA was not obliged to provide an examination or obtain an opinion in response to this claim. McLendon, 20 Vet. App. at 83. For all the foregoing reasons, the claim on appeal must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine; However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Yang, Law Clerk