Citation Nr: 21001104 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-16 428 DATE: January 7, 2021 ORDER Entitlement to service connection for skin cancer, to include basal cell carcinoma and squamous cell carcinoma is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his skin cancer is related to his exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for skin cancer, to include basal cell carcinoma and squamous cell carcinoma, have been met. 38 U.S.C. §§ 1110, 5103; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1965 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Board remanded the claim on appeal in July 2019 for additional development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran’s claim for service connection for basal cell carcinoma has been recharacterized as shown on the title page to better reflect the evidence of record. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); Clemmons v. West, 206 F.3d 1401 (Fed. Cir. 2000). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Entitlement to service connection for skin cancer, to include basal cell carcinoma and squamous cell carcinoma. The Veteran contends that his skin cancer is related to his presumed exposure to herbicide agents. For the reasons that follow, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include cancer, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). In addition, service connection may be established on a presumptive basis for certain diseases resulting from exposure to herbicide agents, such as Agent Orange, if a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, absent affirmative evidence to establish that the Veteran was not exposed to such herbicide agent during that service. See 38 C.F.R. §§ 3.307(a)(6)(iii). If a Veteran is presumably exposed to an herbicide agent, then there is a presumption of service connection for certain enumerated diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a) and 3.309(e). Skin cancer is not included in such enumerated diseases. Turning to the evidence of record, the Veteran has had recurrent basal cell carcinoma on multiple areas of his body, to include during the relevant appeal period. See June 2014 private treatment record. The Veteran also was diagnosed with squamous cell carcinoma in May 2020. See May 2020 private treatment record. Accordingly, the first element of service connection, a current diagnosis, is established. The Veteran contends that he was exposed to herbicide agents during his active military service. His military personnel records confirm that he served in the Republic of Vietnam from September 1966 to September 1967. Accordingly, he is presumed to have been exposed to herbicide agents, and the second element of service connection also is established. Turning to the third element, a causal nexus, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s skin cancer is related to his exposure to herbicide agents. In a September 2014 correspondence, the Veteran’s private treating physician, Dr. K.S., noted that medical literature supports a direct relationship between exposure to carcinogenic substances and the development of many forms of cancer, including skin cancer. He opined that depending on the duration and extent of the Veteran’s exposure to herbicide agents, it is very possible that such a relationship exists that contributed to his developing multiple basal cell skin cancers in similar locations. The Veteran also submitted a statement by another private treating physician, Dr. R.S., who indicated that the Veteran was at higher risk for developing skin cancer due to his exposure to herbicide agents. See September 2014 correspondence. In an April 2016 Statement of Accredited Representative in an Appealed Case, the Veteran’s representative contended that there are studies that show a positive association between herbicide agents and skin cancer and provided citations to four different studies. In its July 2019 remand, the Board found that, at that time, the statements of Dr. K.S. and R.S. were insufficient to grant the claim and remanded the claim in order to obtain a VA examination and opinion. Pursuant to the Board’s remand, the Veteran underwent a VA fee-based examination in January 2020. At that time, the examiner reviewed the studies cited by the Veteran’s representative and noted that those studies clearly established a link between exposure to herbicide agents and subsequent development of skin cancers. Nonetheless, the examiner provided a negative nexus opinion because she found that the Veteran did not have any active carcinomas on examination. However, in order to establish service connection, the Veteran did not have to have active cancer at the time of the examination. It is sufficient that his carcinomas are recurrent and/or that he has had skin cancer at some point during the appeal period. As explained above, the Veteran has had a diagnosis of skin cancer during the appeal period. It appears that the examiner ultimately gave a negative nexus opinion because she found that the Veteran did not have a current, active diagnosis. However, the Board has found that the Veteran has a current diagnosis of skin cancer; thus, the January 2020 opinion is positive evidence of a nexus, when resolving all doubt in favor of the Veteran. The Veteran submitted additional private treatment records in June 2020 which showed a diagnosis of squamous cell carcinoma. In light of this submission, the RO obtained another VA fee-based opinion in October 2020. The examiner considered the new diagnosis as well as the studies cited to by the Veteran’s representative but opined that it was less likely than not that the Veteran’s skin cancer was related to his exposure to herbicide agents. The examiner explained that the studies cited to provide only a general increased risk of all non-melanotic skin cancers due to exposure to herbicides, without establishing a causal link to basal cell carcinoma. The examiner further explained that evidence-based research indicates that both environmental factors and genetic factors contribute to the development of basal cell carcinoma. He reported that exposure to ultraviolet radiation (UV rays) in sunlight is the most important risk factor. He listed additional risk factors of chronic arsenic exposure, radiation therapy, long-term immunosuppressive therapy, and nevoid basal cell carcinoma syndrome. He further noted that there is a lifetime risk of 30 percent for developing basal cell carcinoma in the Caucasian population. He concluded that it was at least as likely as not that the Veteran’s skin cancer was due or related to his lifetime exposure to UV rays from sunlight. The Board assigns limited probative value to the October 2020 opinion because the examiner’s negative nexus opinion is based on general medical literature without discussion of the Veteran’s individual circumstances. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018). Specifically, while the examiner reports that exposure to UV rays is the most important risk factor and concludes that the Veteran’s skin cancer is due to such exposure, the examiner did not address the evidence of record that indicates the Veteran has not had significant exposure to UV rays. The Veteran has repeatedly reported that he worked inside for most of his 40-year post-service career and has not otherwise indicated that he has had significant exposure to the sun. Additionally, while the examiner lists additional risk factors, to include genetics, such risk factors are not present in the current case, and the examiner did not discuss the significance of the absence of these risk factors. See November 2020 correspondence. Accordingly, the Board assigns limited probative value to the October 2020 opinion. Based on the foregoing, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s skin cancer is related to his exposure to herbicide agents. Dr. K.S., Dr. R.S., and the January 2020 VA examiner provided positive nexus evidence. Although the Board previously found that Dr. K.S. and R.S.’s statements alone were not sufficient to grant the claim at the time of the July 2019 remand, the Board nonetheless considers the statements along with the other evidence of record. The January 2020 VA examiner indicated that the studies cited to by the Veteran clearly establish some type of link, whether it be causal, contributory, or otherwise, between herbicide agent exposure and the development of skin cancer. While the October 2020 examiner provided a negative nexus opinion, as explained in detail above, it has been afforded limited probative value. Accordingly, the Board resolves all reasonable doubt in favor of the Veteran and finds that service connection for skin cancer is warranted. The claim is granted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.