Citation Nr: 20026036 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 16-42 503 DATE: April 15, 2020 ORDER Entitlement to service connection for squamous cell skin cancer, to include as due to in-service sun exposure, is granted. Entitlement to service connection for basal cell skin cancer, to include as due to in-service sun exposure, is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his currently diagnosed squamous cell skin cancer was caused by his in-service sun exposure. 2. Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his currently diagnosed basal cell skin cancer was caused by his in-service sun exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for squamous cell skin cancer, to include as due to in-service sun exposure, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for basal cell skin cancer, to include as due to in-service sun exposure, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from April 1963 to July 1971 and in the U.S. Coast Guard from July 1971 to April 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife testified before the undersigned Veterans Law Judge at a December 2019 Travel Board hearing. A transcript of this hearing is of record. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the Board’s favorable decision in granting service connection for squamous cell skin cancer and basal cell skin cancer, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. Service Connection 1. Entitlement to service connection for squamous cell skin cancer, to include as due to in-service sun exposure 2. Entitlement to service connection for basal cell skin cancer, to include as due to in-service sun exposure The Veteran asserts that his current skin cancer developed due to his exposure to the sun during active duty service. Working as an electronics technician, he testified, caused him to work outside on the antennas and radar pedestals for the entirety of his service. At the time the Veteran was in the service, no sun protection was provided. Instead, servicemen used baby oil and iodine, and the Veteran said he used it frequently. During service, the Veteran explained that he would get sunburned all the time and his skin would blister, but eventually, the blisters and sunburn would go away. He would treat his skin with cold cream. Immediately after service, the Veteran said that he noticed his skin problems. He had a wart in the middle of his eyebrow. In 1990, the Veteran said he went to a dermatologist, and he had marks all over his face, head and body. His private dermatologist did several biopsies, which all came back positive for basal cell and squamous cell skin cancer. See December 2019 Board hearing transcript. After service, the Veteran said he worked in the electronics department of a Jacksonville, Florida school board, mostly in the media centers and libraries. He said he performed very little work outside. When he did work outside, he explained that he always covered his skin, wearing long sleeves and a hat. He said that he retired early, because his job asked him to work outside more, and he told the school board that he would be unable to do that work in 100-degree heat wearing long sleeves and hat. He said that he never worked outside unprotected, ever since he received his diagnosis in 1990. Id. Finally, the Veteran testified that he was the only one in his family that had skin cancer. He had four siblings, who were raised with him Georgia, and none of them had skin cancer. Therefore, the Veteran believed that his sun exposure during service caused his skin cancer. Id. 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). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as cancer, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The question before the Board is whether the Veteran’s basal cell skin cancer and squamous cell skin cancer are etiologically related to his active duty service. Based on a careful review of all the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for basal cell skin cancer and squamous cell skin cancer is warranted. The evidence shows that the Veteran has current diagnoses for basal cell carcinoma and squamous cell carcinoma. See January 2013 private pathology report. According to the Veteran’s DD Form 214s, his military occupational specialty was Electronics Technician throughout his service in the U.S. Navy and U.S. Coast Guard. Based on the circumstances of the Veteran’s service, his competent and credible testimony attesting to the nature of his duties during service, including his sun exposure, and the lack of evidence to the contrary, the Board finds that the evidence supports that the Veteran was exposed to sun during active duty service. Now, the Board recognizes that the record includes conflicting medical opinions concerning whether the Veteran’s current basal cell carcinoma and squamous cell carcinoma are etiologically related to his in-service sun exposure. With regard to the medical opinions obtained, as with all types of evidence, it is the Board’s responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In September 2013, a VA examiner opined that the Veteran’s non-melanoma skin cancer was less likely than not caused by, a result of, or aggravated by his active duty service. In making that determination, the VA examiner relied on the finding that there was no objective evidence of diagnosis, treatment, or reference to skin cancer during service or in close proximity to service. In addition, the VA examiner found significant that the Veteran was raised in Georgia, because even casual sun exposure increases the risk of sun-damaged skin. The VA examiner noted that children spend more time outdoors than adults and there is compelling evidence that childhood is a particularly vulnerable time for photocarcinogenic effects of the sun. Citing medical literature, the VA examiner indicated that the “negative effects of solar radiation are accumulated during the entire lifetime; however 80 [percent] of total lifetime sun exposure is taking place before the age of 18 years.” Summarizing the Veteran’s post-service occupational history, the VA examiner said that the Veteran worked outside on the roof installing and maintaining satellite dishes and communication antennas, and he reportedly could not tolerate his continuous exposure to the sun. Finally, the VA examiner found that the evidence did not show skin cancer until 2004, about 18 years after service, and when he was 59 years old. Overall, the VA examiner found that the Veteran had a 46-year history of civilian sun exposure and only a 23-year history of military sun exposure. Thus, the VA examiner concluded that “it cannot be said that the comparatively short period of sun exposure in service was a proximate cause of the skin cancer which developed many years after service.” The Board finds that the September 2013 VA examiner’s opinion is inadequate. First, the September 2013 VA examiner found that the Veteran had significant sun exposure during his childhood in Georgia. However, the September 2013 VA examiner did not discuss the Veteran’s reported family history, which did not include any skin cancer among his four siblings, who were raised with him in Georgia. Second, the September 2013 VA examiner referred to the Veteran’s post-service occupation as also exposing him to sun working outside. Again, the September 2013 VA examiner did not discuss the Veteran’s assertions that he wore long sleeves and a hat when he worked outside. Finally, the September 2013 VA examiner incorrectly found that the Veteran’s skin cancer was first diagnosed in 2004. The record includes a March 2014 letter from the Veteran’s private treating dermatologist, Dr. J.B., who explained that she had treated the Veteran for basal cell skin cancers from 1990 to 1992. Although that letter was not of record at the time of the September 2013 VA opinion, the record did include lay statements in November 2012 from the Veteran attesting to his treatment for skin cancer since 1990. Based on the foregoing, the Board finds that the September 2013 VA examiner’s opinion is based on inaccurate factual findings and did not take into consideration the Veteran’s lay assertions or his family’s medical history; thus, this opinion has little probative value. By contrast, in January 2014, the Veteran’s private treating dermatologist, Dr. L.S., submitted an opinion. Dr. L.S. discussed his treatment of the Veteran for his multiple squamous and basal cell skin cancers. Dr. L.S. summarized the Veteran’s reported in-service sun exposure and assertions that such exposure caused him to develop his skin cancers. Noting that skin cancers do tend to develop after a significant delay to sun exposure and that a 15 to 20-year delay is not uncommon, Dr. L.S. explained how skin cancer results from ultraviolet induced mutations at the DNA level. Disputing the finding made by the September 2013 VA examiner, Dr. L.S. said that “[c]urrent thinking does not support an 80 percent total lifetime sun exposure before 18 and it is thought that subsequent exposure is very important.” Rather, Dr. L.S. discussed how the development of skin cancer 19 years after significant exposure would, in fact, not be an unusual occurrence as most patients with skin cancer tend to develop them as older individuals. Overall, Dr. L.S. concluded that “[t]his is not to say that [the] Veteran’s skin cancers are entirely due to his service related exposure, but undoubtedly that was a major contributing factor.” Given that Dr. L.S.’s opinion is based on an interview of the Veteran, consideration of his lay statements, a discussion of medical principles, and clinical expertise, and was supported by a thorough rationale, the Board finds that the January 2014 private opinion provides the most persuasive evidence regarding the etiology of the Veteran’s basal cell and squamous cell skin cancers. In summary, resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his currently diagnosed basal cell skin cancer and squamous cell skin cancer are etiologically related to his in-service sun exposure. Accordingly, the Veteran’s service connection claims for basal cell skin cancer and squamous cell skin cancer must be granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.