Citation Nr: 21004246 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-54 150 DATE: January 26, 2021 ORDER 1. Entitlement to service connection for malignant melanoma, to include as due to exposure to herbicide agents, is denied. 2. Entitlement to service connection for multiple squamous cell carcinomas, to include as due to exposure to herbicide agents, is denied. 3. Entitlement to service connection for seborrheic keratosis, to include as due to exposure to herbicide agents is denied. 4. Entitlement to service connection for scars, to include as secondary to melanoma and squamous cell carcinoma, is denied. FINDINGS OF FACT 1. The Veteran’s malignant melanoma, multiple squamous cell carcinomas, and seborrheic keratosis were not manifested in service or for many years thereafter; his diagnosed melanoma, squamous cell carcinomas, and seborrheic keratosis are not diseases listed in 38 C.F.R. § 3.309(e), and are not shown to be etiologically related to his service, to include as due to exposure to herbicide agents therein. 2. The Veteran’s scar residuals were not manifested in service and are not shown to be etiologically related to his service or to a service-connected disability. CONCLUSIONS OF LAW 1. 2. 3. Service connection for malignant melanoma, multiple squamous cell carcinomas, and seborrheic keratosis is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 4. Service connection for scar residuals are denied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from February 1968 to February 1971, to include service in combat in Vietnam. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a May 2015 Department of Veterans Affairs (VA) rating decision. In August 2019, a videoconference hearing was held before the undersigned; a transcript is in the record. In August 2019, these matters were remanded for additional development. At the outset, the Board finds there has been substantial compliance with the August 2019 Board remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). A review of the December 2019 examination opinion found it adequate for rating purposes, which will be discussed further below. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection is warranted for a disability which is caused or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection there must be evidence of: (1) a disability for which service connection is sought; (2) a disability that is already service connected; and (3) that the already service connected disability caused or aggravated the disability for which service connection is sought. Certain chronic diseases (to include malignant tumors) may be service connected on a chronic disease presumptive basis if manifested to a compensable degree within a specified period following separation from service (one year for malignant tumors). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases (listed in 38 C.F.R. § 3.309 (e)) may be presumed to be service connected as due to exposure to herbicides if manifested in a Veteran who served in Vietnam during the Vietnam Era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Squamous cell carcinoma, melanoma, and seborrheic keratosis are not diseases listed in 38 C.F.R. § 3.309 (e). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran 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). The Veteran alleges that he has malignant melanoma, multiple squamous cell carcinomas, and seborrheic keratosis due to exposure to Agent Orange in service and scars due to numerous excisions of his dermatological problems. He served in Vietnam, and is not in dispute that he was exposed to Agent Orange/herbicide agents in service. The Veteran’s service treatment records (STRs) are silent for complaints, treatment, or diagnoses pertaining to skin cancers. On August 1970 separation examination, his skin was normal on clinical evaluation; a scar on his right knee was noted. Private treatment records note a malignant melanoma of the right arm was diagnosed and excised in 2003. See April and May 2003 private treatment records. A February 2005 private surgical pathology report found squamous cell carcinoma of the forehead and actinic keratosis of both hands and the left forearm. Private treatment records note seborrheic keratosis on the Veteran’s neck was diagnosed in 2006. See October 2006 private treatment record. A February 2014 private consultation (for an evaluation of a recent abnormal chest x-ray) report letter notes that the Veteran reported having a melanoma removed from his right arm in 1996 and that since then he has had about 30 excisions of skin conditions that crop up. In a March 2015 disability benefits questionnaire (DBQ) a private provider noted diagnoses of malignant melanoma, multiple squamous cell carcinomas, and residual scarring. She noted squamous cell carcinomas were found multiple times between 2010 and 2012. In October 2016, the Veteran submitted medical treatise evidence (articles suggesting an association between non-melanotic skin cancers, including squamous cell carcinoma, and exposure to Agent Orange in Vietnam). At the August 2019 hearing testimony the Veteran described the nature and extent of his exposure to herbicides agents and sun exposure in Vietnam. [While the transcript notes portions of his testimony, particularly pertaining to exposure to sun, could not be transcribed because the recordings were inaudible, the Board finds that corrective action (such as another hearing or written clarification by the Veteran) is not necessary. That portion of the hearing testimony does not pertain to an unestablished fact or one in dispute; it is acknowledged that the Veteran has substantial exposure to tropical sun while serving in Vietnam.] On December 2019 VA skin examination (pursuant to the August 2019 Board remand), tumors and neoplasms of the skin including malignant melanoma, squamous cell carcinoma, and seborrheic keratosis were diagnosed. On December 2019 VA scars examination, malignant melanoma excision with residual scarring was diagnosed. In a December 2019 VA medical opinion, the examiner opined that it is less likely than not that the melanoma, squamous cell carcinomas, seborrheic keratosis, or scar residuals are related to service. The examiner listed numerous risk factors for melanoma and squamous cell carcinoma and opined that the risk factors do not include exposure to Agent Orange or herbicide agents. The examiner noted that the Veteran has multiple risk factors for melanoma and squamous cell carcinoma, including being classified as a Fitzpatrick skin phototype II, white, which always burns, and minimally tans. The Veteran endorsed a 13-year history of sun exposure in a job after service. The examiner stated there is no medical evidence to show exposures in Vietnam as being causative for melanoma or squamous cell carcinoma, and opined that the more likely alternative etiology is his long history of exposure to sun following separation from service. The examiner noted the medical treatise evidence the Veteran submitted, and observed that the study was inconclusive, citing to the study’s own takeaway that there might be an association between invasive skin cancer and Agent Orange but additional studies on a larger scale were needed to confirm this hypothesis, thus indicating that the treatise evidence is speculative in nature (and therefore inadequate to establish a nexus between the claimed disabilities and the Veteran’s service/and exposure to Agent orange therein). Moreover, the examiner noted seborrheic keratosis usually develop after the age of 50, but can appear in young adulthood, and there is a genetic predisposition to develop a high number of seborrheic keratoses. The examiner noted exposure to Agent Orange/herbicide agents is not a risk factor or known etiology for seborrheic keratosis. The examiner opined the Veteran’s age and genetic predisposition are the more likely etiology for his seborrheic keratosis. Finally, the examiner opined that the status post malignant melanoma excision with residual scarring of the right forearm is due to the malignant melanoma of the right forearm (which is not service-connected), noting that the record shows removal of a right arm malignant melanoma. 1., 2. Entitlement to service connection for malignant melanoma and multiple squamous cell carcinomas is denied. At the outset, it is again noteworthy that melanoma and squamous cell carcinoma are not diseases listed in 38 C.F.R. § 3.309 (e); therefore, the presumptive provisions under 38 U.S.C. § 1116 do not apply and service connection for melanoma and squamous cell carcinoma under those presumptive provisions is not warranted. It is not in dispute that the Veteran has melanoma (first diagnosed in 2003, over 30 years following his separation from service) and squamous cell carcinoma (first diagnosed in 2005). As there is no evidence that melanoma and squamous cell carcinoma were manifested in service, or for many years thereafter, service connection for such disabilities on the basis that they became manifest in service, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112) is not warranted. As melanoma and squamous cell carcinoma are not shown to have been manifested until decades after service, service connection based on continuity of symptomatology (under 38 C.F.R. § 3.303(b)) is also not warranted. Whether, in the absence of a showing of manifestation in service and continuity since, the Veteran’s melanoma and squamous cell carcinomas may otherwise be etiologically related to his service is a medical question beyond the realm of common knowledge, and incapable of resolution by lay observation. See Jandreau, 492 F.3d at 1377. The only competent (medical opinion) evidence in the record regarding a nexus between the Veteran’s melanoma and squamous cell carcinomas and his service is in the December 2019 VA examiner’s medical opinion against the claim. The provider is a medical professional competent to offer the opinion, and the record reflects familiarity with the Veteran’s entire record and includes rationale with citation to supporting data. The examiner explained that the Veteran’s melanoma and squamous cell carcinoma are more likely related to his years of exposure to sun after service. The examiner explained that the extensive exposure to sun over many years after service is a more likely etiology for the melanoma and squamous cell carcinomas. Regarding claimed nexus to exposure to Agent Orange, the examiner addressed the medical treatise evidence and observed that the medical studies reported found only suggestive evidence of a causal connection between skin cancers and Agent Orange and that the findings were inconclusive; the examiner indicated that to establish that there is indeed such a relationship more complete studies would be necessary (and indicated, in essence, that there were no such studies that establish this claimed relationship). The opinion is probative evidence and, without competent evidence to the contrary [the Veteran has not submitted a medical opinion that applies the textual evidence to the facts of this case], is persuasive. The record does not include any other competent and probative evidence that the Veteran’s malignant melanoma and squamous cell carcinomas are indeed etiologically related to his service, to include as due to exposure to herbicide agents. Accordingly, the preponderance of the evidence is against these claims, and the appeal in the matter must be denied. Gilbert, 1 Vet. App. at 55 3. Entitlement to service connection for seborrheic keratosis is denied. Seborrheic keratosis is not a disease listed in 38 C.F.R. § 3.309(e); therefore, the presumptive provisions in 38 U.S.C. § 1116 do not apply and service connection for seborrheic keratosis on a presumptive basis as due to exposure to herbicide agents is not warranted. It is not in dispute that the Veteran has seborrheic keratosis (first diagnosed in 2006, over 30 years following his separation from service). Whether seborrheic keratosis first diagnosed decades after service may be etiologically related to exposures service is a medical question beyond the realm of common knowledge, and incapable of resolution by lay observation. See Jandreau, 492 F.3d at 1377. The only competent (medical) evidence in the record regarding a nexus between the Veteran’s seborrheic keratosis and his service is in the December 2019 medical opinion, indicating that the Veteran’s seborrheic keratosis is less likely related to his service. The VA examiner is a medical professional competent to offer the opinion, and the record reflects familiarity with the Veteran’s entire record and includes rationale with citation to supporting factual data. The examiner opined that age and genetic predisposition (which are known risk factors for keratosis) are the more likely etiology for the Veteran’s seborrheic keratosis. The opinion is probative evidence and, without competent evidence to the contrary, is persuasive. The Board has considered the Veteran’s general assertions that his current seborrheic keratosis is related to his exposure to herbicide agents in service. As noted above, because seborrheic keratosis is not listed in 38 C.F.R. § 3.309(e), to substantiate this theory of entitlement, there must be affirmative evidence that it is related to such exposure. The Veteran is a layperson and his own opinion is not competent evidence in the matter, and he has not presented any competent (medical opinion/textual) evidence supporting this theory of entitlement. See Jandreau, 492 F.3d 1372, 1377. The record does not include any competent evidence that the Veteran’s seborrheic keratosis is indeed etiologically related to his service, to include as due to exposure to herbicide agents. Accordingly, the preponderance of the evidence is against this claim, and the appeal in the matter must be denied. Gilbert, 1 Vet. App. at 55. 4. Entitlement to service connection for skin cancer residual scars is denied. The record does not show (and the Veteran does not allege) that his skin cancer removal scars were manifested in service. It is not in dispute that his scars (other than an unrelated one on a knee) are due to excisions of skin problems decades after service. His principal theory of entitlement is one of secondary service connection (assuming that the underlying skin conditions are service-connected), he asserts the scars are from the numerous excisions he underwent (decades after service). As melanoma, multiple squamous cell carcinomas, and seborrheic keratosis are not service connected (the appeals in those matters being denied herein), the secondary [to those disorders] service connection theory of entitlement lacks legal merit, and service connection must be denied on that basis. 38 C.F.R. § 3.310 (a); Sabonis v. Brown, 6 Vet. App. 430 (1994). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.