Citation Nr: 20004121 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 16-51 861 DATE: January 16, 2020 ORDER Entitlement to service connection for squamous cell carcinoma, to include as due to herbicide agent exposure is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s squamous cell carcinoma manifested during service or within one year of service, and the preponderance of the evidence is also against a finding that the Veteran’s skin cancer is related to an event, injury, or disease in service, to include as due to his presumed herbicide exposure in service. CONCLUSION OF LAW The criteria for entitlement to service connection for squamous cell carcinoma, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, a veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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 the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). The term “herbicide agent” means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. If a veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin’s disease; all chronic B cell leukemias; multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction); atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for squamous cell carcinoma, to include as due to herbicide agent exposure At the outset, the Board notes that the Veteran’s service records show that he served in the Republic of Vietnam, and he is therefore presumed to have been exposed to Agent Orange or other herbicide agents. See 38 C.F.R. §§ 3.307 (a)(6)(iii). However, the Veteran’s squamous cell carcinoma is not listed as one of the disabilities for which presumptive service connection can be granted under 38 C.F.R. §§ 3.307(a)(6) and 38 C.F.R. §§ 3.309(e) based on herbicide agent exposure. Thus, entitlement to service connection on a presumptive basis, as due to herbicide agent exposure, is not warranted. Additionally, the Veteran’s service treatment records show no complaints, diagnosis, or treatment for squamous cell carcinoma at any time during active service; nor, is there evidence that his squamous cell carcinoma was treated or diagnosed within one year of separation of service. Rather, the record indicates that the Veteran was initially diagnosed with squamous cell carcinoma in February 2008. Thus, the evidence establishes that his skin cancer had its onset over 35 years following his separation from service. Consequently, service connection cannot be granted based on chronicity or continuity of symptomatology as the skin cancer or symptoms thereof did not manifest during service or within one year of separation from service. 38 C.F.R. §§ 3.309(a). While the Veteran is not entitled to service connection for squamous cell carcinoma on a presumptive basis, his claim is still to be considered under traditional service connection principles. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As noted above, the Veteran has a current diagnosis of squamous cell carcinoma, and the existence of a current disability is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, since his herbicide agent exposure is presumed, there is evidence of an event, injury, or disease in service. Therefore, the entitlement to service connection turns upon whether there is evidence of a nexus between the in-service event and the present disability. Id. In a July 2014 Disability Benefits Questionnaire, the Veteran’s private physician noted that he was diagnosed with squamous cell carcinoma in February 2008 and subsequently underwent a surgical procedure to treat the condition. The physician did not discuss the etiology of his squamous cell carcinoma. In an October 2015 Notice of Disagreement (NOD), the Veteran indicated that he had periodic skin cancer issues and believed that his exposure to Agent Orange in Vietnam was the primary cause of his cancer. He reiterated this belief in his October 2016 VA Form 9. At his September 2019 Board hearing, the Veteran stated that his condition had “slowly built up to the point that [it was] something [he got] involved with now four or five times every year.” He further noted that he spent time in areas where he was exposed to Agent Orange. Accordingly, the Board concludes that the preponderance of the evidence of record is against a finding that the Veteran’s squamous cell carcinoma is related to an injury, event, or illness in service, to include his presumed herbicide agent exposure. The Board notes that the Veteran requested an additional 90 days to submit evidence at his Board hearing in September 2019; however, the Board did not receive any evidence during that additional period for submission. The Board highlights that the duty to assist is a two-way street that requires a claimant’s active participation in a claim for VA benefits. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board further recognizes that the Veteran has not been afforded a VA authorized examination in association with his claim. However, under McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must only be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McClendon, 20 Vet. App. at 83. While, as noted above, the record reflects that the Veteran has established the presence of a current disability and of an in-service incident, there is no competent evidence etiologically linking the two. Additionally, although the Veteran indicated his belief that his squamous cell carcinoma was related to his presumed exposure to Agent Orange, the record does not indicate that he has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Thus, he is not competent to offer an etiological opinion concerning his condition. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). The record is further absent of any evidence indicating that his squamous cell carcinoma is otherwise related to his active duty military service. The Board also notes that the absence of squamous cell carcinoma as a disease presumed to be associated with herbicide agent exposure in 38 C.F.R. § 3.309(e) inherently implies that the condition is presumed to not be related to the claimed in-service event. Accordingly, the criteria for requiring VA to provide the Veteran an examination pursuant to McClendon have not been met, as there is no competent evidence of record indicating that the Veteran’s squamous cell carcinoma may be associated with his active duty military service, including his exposure to herbicide agents. As the preponderance of the evidence is against a finding that his squamous cell carcinoma is related to his active duty service, entitlement to service connection is not warranted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ferguson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.