Citation Nr: 1809026	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  09-30 337	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

Entitlement to service connection for basal cell carcinoma (skin cancer) to include due to herbicide exposure and secondary to service-connected skin rashes.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

J.T.Stallings, Associate Counsel


INTRODUCTION

The Veteran had active service from July 1968 to July 1971. 

FINDING OF FACT

The Veteran's basal cell carcinoma did not have its onset in service nor did it manifest to a compensable degree within one year following service discharge, nor is it otherwise related to service, to include herbicide exposure or secondary to his service-connected skin rashes disability.


CONCLUSION OF LAW

Basal cell carcinoma, was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Service Connection 

Service connection may be granted for disability resulting from 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 any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to service connection for skin cancer, to include due to Agent Orange exposure and secondary to service-connected skin rashes. The reasons follow.

IIa. Service Connection-Herbicide Exposure

There are statutory presumptions and VA regulations implementing them, that are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d) (2017). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of
38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2017). In the case of a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, VA regulations provide that he shall be presumed to have been exposed during such service to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2017). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i).

If a veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010).

The fact that a veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.304(d); Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009).

The Board finds the Veteran has a current diagnosis of basal cell carcinomas, which was diagnosed in May 2007. The Board also finds that the Veteran meets the requirements for the presumption of herbicide exposure, as he has verified service in Vietnam during the allotted time period. However, the Veteran's diagnosed disability of basal cell carcinoma is not one of the disabilities listed under 38 C.F.R. § 3.309(e). As stated above, there is no presumption of service connection for any disability outside of those listed. Therefore, the Veteran's skin cancer disability cannot be service connected on a presumptive basis of herbicide exposure. 

IIb. Service Connection - Chronic Disease Presumption 

The Veteran's claims cannot be granted service connection as a chronic disease as well. 

Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137(2012); 38 C.F.R. 3.307 (2017). 

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2017). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Veteran's skin cancer disability is considered a chronic disability under 38 C.F.R. 3.307. However, there is no evidence that the Veteran's skin cancer was diagnosed in service or within one year of service. There are also no complaints of symptomology for this particular condition in the Veteran's service treatment records or again within a year of service. The Veteran did have noted skin diseases as his separation examination in June 1971, but those have already been attributed to his now service-connected skin rash disability and therefore the Veteran is already being compensated this symptomology. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14 (2017). 

Therefore, with no connection to or within a year of service, as far as diagnosis and symptomology, the Board finds that the Veteran's skin cancer disability cannot be service-connected as a chronic disease. 

IIc. Service Connection - Direct Basis 

The Board also finds that the Veteran's skin cancer cannot be service connected on a direct basis as well. There is no nexus between the diagnosis of basal cell carcinoma and the Veteran's service.

The Veteran claims that he was subjected to extreme sun exposure while in Vietnam from November 1968 to November 1969 and that was the potential cause of his skin cancer disability. After a full VA examination and review of the Veteran's case file in May 2016, the examiner opined that the Veteran's exposure to the sun during active duty was not extensive and that it was his post-service work at a water waste facility for 25 years that required him to be outside consistently and therefore exposed him to the sun that was more likely to blame for his disability.

Also, the first documented evidence of skin cancer was in May 2007. Thus, the first showing of basal cell carcinoma was more than 30 years following service discharge. This evidence tends to establish that the Veteran's disability did not have its onset in service. The passage of many years between service separation and medical documentation of a disability tends to weigh against a finding that a disease or injury had its onset in service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).

While the Veteran is competent to describe his symptoms in regard to his disability, he is not competent to diagnose or determine the etiology of skin cancer. Lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); however, as to the specific issue in this case, the question of the etiology of his skin cancer is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Basal cell carcinoma is not the type of disability that is readily amenable to mere lay diagnosis or probative comment regarding its etiology.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

The Veteran has not submitted competent evidence supporting his claim that his skin cancer is related to military service. "It is the veteran's 'general evidentiary burden' to establish all elements of his claim." Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). VA "is required to reject a disability claim if the claimant fails to put forth sufficient evidence showing that he suffered an injury or incurred a disease during service." Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009). The most probative and credible evidence establishes that the Veteran's skin cancer disability is not related to service.

Therefore, the Board finds that the evidence weighs against the Veteran's skin cancer disability being directly related his military service. 

IId. Service connection - Secondary Basis.

In addressing all potential avenues, the Veteran's skin cancer cannot be service-connected on a secondary basis as well. 

The Veteran also claims that his now service-connected skin rashes aggravated or caused his later diagnosed skin cancer disability. The Veteran's various service treatment records indicate while in service, the Veteran had a rash on the groin, ringworm, rash and cyst on his back and growth on his right arm during various points of service. These conditions were collectively service-connected in April 2014, dating back to the Veteran's claim in September 2007. The Veteran was afforded several VA examinations and/or opinions in May 2016, May 2017 and a medical opinion request by the Board in November 2017 to address the Veteran's claim on a secondary basis. 

Inclusively, all the opinions stated that the Veteran's skin cancer is not caused or aggravated by his service-connected skin rash disabilities. The May 2016 exam indicates that the Veteran himself stated that he has not had a recurrence of his dermatitis since service. The May 2017 opinion further separated the two disabilities with the details that the Veteran's in-service May 1971 back rash was more than likely not cancer because cancer does not grow and spread as fast as that rash did. It was also treated with antifungal creams and went away. The examiner goes on to state that there is no medical literature connecting the Veteran's rashes and skin cancer as well. Finally, the Board's retrieved medical opinion further indicates that skin infections are not predisposing medical conditions for basal cell carcinoma and are independent events with no medical relation, they have different etiologies. Also, in regard to the Veteran's skin cancer being aggravated beyond its natural progression because of the skin rashes, the May 2017 opinion points out that this is not an issue as the Veteran's skin cancer no longer exists and therefore not reoccurring. 

The Board notes that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The most probative and credible evidence establishes that the Veteran's skin cancer is not caused or aggravated by the service-connected skin rashes. 

In conclusion, the preponderance of the evidence is against a finding that the Veteran's skin cancer is related to service, to include herbicide exposure or secondary to his skin rash disability and therefore weighs against the Veteran's claim of entitlement to service connection for skin cancer. As such, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49. 


ORDER

Entitlement to service connection for basal cell carcinoma to include due to herbicide exposure and secondary to service-connected skin rashes is denied.




____________________________________________
A. P. SIMPSON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs