Citation Nr: 20040168 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 18-44 178 DATE: June 11, 2020 ORDER Service connection for right cheek squamous cell carcinoma is granted. FINDING OF FACT Right cheek squamous cell carcinoma is related to in-service sun exposure (the same sun exposure that caused the service-connected squamous cell carcinoma of the hand). CONCLUSION OF LAW Right cheek squamous cell carcinoma was incurred in service. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Tennessee Army National Guard from July 1969 to March 1975, and again from November 1982 to March 2008. He had a period of active duty for training from July 1969 to November 1969. Most relevant to the Veteran’s claim, he had a period of active duty from June 7, 2004 to November 22, 2005 under 10 U.S.C. § 12302 in support of Operation Iraqi Freedom. According to the rating decision, the AOJ accepted service from November 1976 to March 2008 as qualifying Federal Service. We repeat that much service was National Guard service. We shall not remand for clarification of countable federal service. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303 (d). National Guard duty is distinguishable from other service in that a member of the National Guard may be called to duty by the governor of their state. “[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor.” Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for veterans’ benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. §12401, or must have performed “full-time duty” under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. Service as ACDUTRA and INACDUTRA is Federal service. Here, the record reflects that the Veteran was ordered to active duty from June 7, 2004 to November 22, 2005 under 10 U.S.C. § 12302 in support of Operation Iraqi Freedom, during which time he served in Iraq and Kuwait. The Veteran had qualifying Title 10 active duty. 1. Right cheek squamous cell carcinoma The Veteran contends the squamous cell carcinoma on his right cheek is due to sun exposure he experienced while deployed in Iraq and Kuwait. Upon review of the evidence of record, the Board finds that service connection for skin cancer is warranted. Service treatment records contain no complaints or treatments relating to the Veteran’s skin. The Veteran’s skin was normal on periodic National Guard examinations and he did not report any skin problems in periodic health assessments and reports of medical history. The Veteran was provided an examination in December 2007 prior to separating from the National Guard. On physical examination, the examiner noted a 1 cm by 1 cm circular hyperpigmented lesion to the right face with slightly irregular borders and variations of color consistency. The Veteran stated the lesion occurred after deployment to Iraq in 2004. He was diagnosed with a suspicious lesion on his face. See December 2007 VA Examination. Private treatment records show that in January 2008 the Veteran visited a dermatologist with complaints of a mole on his face. Physical examination showed a brown plaque on his right cheek and a biopsy was performed. The biopsy results showed a pigmented seborrheic keratosis. A December 2015 private dermatology notes show no suspicious areas on the face. In a March 2017 dermatology appointment, the Veteran reported a spot on his right cheek that itches and had been there for three months. Physical examination showed a crusted plaque on the right cheek and a biopsy was taken. The biopsy results confirmed squamous cell carcinoma. The Veteran underwent a Mohs surgery in April 2017 and the right cheek squamous cell carcinoma was removed. The Veteran was afforded a VA skin diseases and scars examinations in June 2017. The examiner noted an excision of a seborrheic keratosis on the Veteran’s right cheek in January 2008 and squamous cell carcinoma on the right cheek diagnosed in March 2017. Physical examination showed a scar on the Veteran’s right cheek/temple area secondary to excision of the squamous cell carcinoma in 2017. See June 2017 VA Examination. The examiner concluded that the Veteran’s right cheek squamous cell carcinoma was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service sun exposure. The examiner explained that it is medically not possible to state, with any certainty, that any sun exposure experienced in service, as opposed to that experienced before or after service, is in any way causally related to the claimed skin conditions. Any attempt to do so is a matter of mere speculation. See June 2017 VA Nexus Opinion. The Board acknowledges that the Veteran is service connected for a residual scar on his left hand due to squamous cell carcinoma, which VA found was directly related to service in particular sun exposure. Service connection was granted primarily based on a July 2014 VA medical opinion where the examiner concluded the carcinoma was at least as likely as not caused by sun exposure in Kuwait and Iraq. Here, we are faced with a positive opinion regarding the hand. In regard to the cheek, the examiner merely stated that an opinion would be speculative. In essence, a non-opinion. Under section 1154, we accept that the appellant had significant sun exposure while serving in the Gulf. Furthermore, we have been presented with no rational basis to distinguish the in-service sun exposure causing skin cancer of the hand from the exact same sun exposure causing the same form of cancer to the right cheek. There is no doubt and service connection is granted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.