Citation Nr: 20072012 Decision Date: 11/06/20 Archive Date: 11/06/20 DOCKET NO. 16-14 626 DATE: November 6, 2020 ORDER Entitlement to service connection for squamous cell carcinoma, including as due to herbicide agent and/or sunlight exposure is denied. FINDING OF FACT A preponderance of the evidence of record is against the finding that the Veteran’s current disability of squamous cell carcinoma was caused by herbicide agent and/or sunlight exposure during his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for squamous cell carcinoma, including as due to herbicide agent and/or sunlight exposure during the Veteran’s military service have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served in active military duty from November 1966 to September 1968. This matter comes before the Board of Veterans’ Appeals (“Board”) on appeal from the October 2014 rating decision of the Department of Veterans Affairs (“VA”) Regional Office (“RO”) in Montgomery, Alabama. The Veteran appeared at an October 2018 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this matter in November 2019 and directed the RO to afford the Veteran with a VA medical examination and opinion regarding etiology of the claimed condition and whether it is related to the Veteran’s military service. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board here finds that the December 2019 medical opinion is adequate and substantially complied with the directives set forth in the November 2019 remand. Following issuance of the most recent supplemental statement of the case for the issue on appeal, additional evidence was associated with the record. The additional evidence, which consists of medical records and exam request, is not pertinent to the issue on appeal, instead it is relevant to a different issue that is not on appeal. Accordingly, a remand for issuance of an additional supplemental statement of the case is not necessary, and the Board may proceed with appellate consideration. See 38 C.F.R. § 20.1305(c) Entitlement to service connection for squamous cell carcinoma, including as due to herbicide agent and/or sunlight exposure is denied. The Veteran asserted that his squamous cell carcinoma is related to his military service in Vietnam and due to the exposure to herbicide agent and prolonged sunlight. At the Veteran’s October 2018 Board hearing, he testified that while he was deployed in Vietnam, he was tasked with putting up storage buildings during the day and was exposed to the hot sun for extended periods of time. Additionally, the Veteran testified that during his military service he never had any skin problems but started to develop spots of melanoma five or six years ago, and doctor started to remove them. Furthermore, the Veteran stated that after his military service he worked in a sawmill and was mostly in the shade. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran 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, 53-54 (1990); 38 C.F.R. § 3.102. 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 section 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 section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(a)(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(a)(6)(i). Section 3.307(a)(6) also provides that a veteran who, during active military, naval, or air 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)(6)(iii). The existence of current disability of squamous cell carcinoma is not in question. In December 2019 VA examination, a diagnosis of squamous cell carcinoma was noted. Regarding the in-service occurrence, as described earlier, a veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 307(a)(6)(iii). In this case the Veteran's personnel records confirm such service; therefore, he is presumed to have been exposed to herbicide agent. The certificate of release, DD 214, specifies that the Veteran served in the Republic of Vietnam. The Veteran also testified that he served in Vietnam. As far as the nexus between the current disability and in-service event is concerned, the Board notes that squamous cell carcinoma is not an enumerated presumptive disease. See 38 C.F.R. § 3.309(e). Thus, a nexus between the Veteran’s current disease of squamous cell carcinoma and exposure to herbicide agent during his military service cannot be presumed for entitlement to presumptive service connection. Even though the Veteran is not entitled to service connection based on the presumption in 38 C.F.R. § 3.309, VA must still consider whether the Veteran’s disability is causally linked to service on a direct basis, to include exposure to herbicide agent. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d). As described earlier that the existence of current disability of squamous cell carcinoma is not in question because the Veteran has been diagnosed with this disability during his December 2019 VA examination. As far as in-service incurrence of disease or injury is concerned, the Board noted above that the Veteran was exposed to herbicide agent. The Veteran also claimed that he was exposed to prolonged sunlight during his service in Vietnam. At the Veteran’s October 2018 Board hearing, he testified that while he was deployed in Vietnam, he was tasked with putting up storage buildings during the day and was exposed to the hot sun for extended periods of time. Here the Veteran’s statement is competent because exposure to sunlight is capable of lay observation. The Board accepts the Veteran’s statement as sufficient to prove the in-service event that exposed the Veteran to prolonged sunlight. Regarding the causal relationship between the current disability of squamous cell carcinoma and in-service event, in the December 2019 VA medical examination, the examiner concluded any currently diagnosed condition related to the Veteran’s claimed skin condition, to include squamous cell carcinoma, is less likely than not (less than 50 percent probability) incurred in or caused by an event in service, or is otherwise related to the Veteran’s military service, to include exposure to herbicide agent and continuous sun exposure. The examiner stated that there is no accepted evidence of a link between malignant melanoma and any substance whether through skin contact or general poisoning. In reference to the sun exposure, the examiner stated that this likely did occur during the Veteran’s military service, but would have also occurred during every day, normal life; and the sun exposure is not a hazard specific to military service but happens anytime one goes outside. Therefore, it is less likely than not related to military service. The examiner also asserted that no records were found during service of any issues with skin cancer, consistent with the Veteran’s report of an onset in 2010. The Veteran asserted that his skin condition including squamous cell carcinoma is related to his exposure to herbicide agent and prolonged sunlight during his service. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires medical education, training, or expertise to make such a conclusion. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the December 2019 VA medical examination than to the Veteran’s lay testimony. After review of VA medical records, the earliest possible indication of presence of squamous cell carcinoma was in November 2005. There is no indication of any skin problem in service treatments record. Also, the Veteran indicated that his skin problem started five to six years ago. A preponderance of the evidence must be against the claim for benefits to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here when weighing all pieces of the evidence of record, a preponderance of evidence is against the claim for proving a causal relationship between the present disability of squamous cell carcinoma and the disease or injury incurred or aggravated during service. The service treatment record, the medical history, and December 2019 negative nexus opinion indicate that it is less likely than not that squamous cell carcinoma incurred in or caused by an event in service or is otherwise related to the Veteran’s military service. Hence, entitlement to service connection for squamous cell carcinoma, including as due to herbicide agent and/or sunlight exposure is denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tariq, N, 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.