Citation Nr: 19106951 Decision Date: 01/30/19 Archive Date: 01/29/19 DOCKET NO. 15-19 739 DATE: January 30, 2019 ORDER Service connection for skin cancer of the left ear is denied. FINDING OF FACT The Veteran’s skin cancer of his left ear was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for skin cancer of the left ear have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was scheduled for a Board hearing by videoconference. An October 2018 report of contact dated the day of the scheduled hearing reflects that he did not request a hearing, that his representative must have made the request, and that the request would be withdrawn. Thus, the request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(e) (2018). Service connection for skin cancer of the left ear Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection may be granted for any disease 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) (2018). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a veteran served for 90 days or more of active service, service incurrence shall be presumed for certain chronic diseases, including malignant tumors, if the disease manifested to a compensable degree within one year from the date of separation from active service. While the disease need not be diagnosed within the presumption period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). The Veteran believes that he is entitled to service connection for skin cancer of his left ear. However, he has not put forth any evidence or argument as to how the skin cancer is related to his active service. Service treatment records do not show any complaints, findings, or diagnoses of skin cancer of the left ear. A July 1967 report of medical examination at the time of separation shows a normal evaluation of the Veteran’s skin. Thus, there is no evidence of skin cancer of the Veteran’s left ear during his active service. Post service, a September 2013 private pathology report shows a diagnosis of squamous cell carcinoma of the left ear. This evidence dates the diagnosis to over 45 years after the Veteran’s discharge from active service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, there is no competent medical evidence that links the skin cancer of the Veteran’s left ear to his active service. While malignant tumors are subject to presumptive service connection, in this case, there are no medical records dated within one year from the date of the Veteran’s discharge from active service to establish any objective evidence of the skin cancer of his left ear. As noted above, the medical evidence of record shows that his skin cancer was not diagnosed until over 45 years after his discharge. In a January 2019 brief, the Veteran’s representative noted that the Veteran served in the Republic of Vietnam. The representative then asserted that, although VA has stated that there is inadequate or insufficient evidence to determine whether there is an association between skin cancer and exposure to Agent Orange, service connection for the Veteran’s skin cancer should nevertheless be granted. As the Veteran served in the Republic of Vietnam during the Vietnam era, exposure to herbicides is presumed. However, to date, skin cancer is not recognized by VA as being associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e) (2018). Thus, service connection on a presumptive basis for this disability associated with herbicide exposure is not warranted. The Board notes that a lay person is competent to give evidence about observable symptoms such as a spot, mole, or other growth on the skin. Layno v. Brown, 6 Vet. App. 465 (1994). A lay person is also competent to address the etiology of a disability in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the Veteran has not asserted that he has had symptoms of his skin cancer of his left ear since active service. The objective evidence of record dates the onset of symptoms to over 45 years after discharge. Moreover, the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his disability. Given the above, the Board finds that the Veteran’s skin cancer of his left ear was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. In conclusion, service connection for skin cancer of the left ear is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. W. Kim, Counsel