Citation Nr: 21061513 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 15-34 911 DATE: October 4, 2021 THE ISSUES 1. Entitlement to service connection for basal cell carcinoma, to include as due to herbicide exposure. 2. Entitlement to service connection for squamous cell carcinoma, to include as due to herbicide exposure. ORDER Entitlement to service connection for basal cell carcinoma, to include as due to herbicide exposure is denied. Entitlement to service connection for squamous cell carcinoma, to include as due to herbicide exposure is denied. FINDINGS OF FACT 1. The Veteran's basal cell carcinoma did not have its onset in service, manifest to a compensable degree within one year of discharge, or is otherwise related to active service, including as due to exposure to Agent Orange or in-service sun exposure. 2. The preponderance of the evidence shows the Veteran does not have a current diagnosis of squamous cell carcinoma, and he did not manifest one during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for basal cell carcinoma are not met. 38U.S.C. §§1110, 1112, 1113, 1137, 5107; 38C.F.R. §§3.102, 3.303, 3.307, 3.309 (2021). 2. The criteria for service connection squamous cell carcinoma have not been met. 38 U.S.C. §§ 1101, 1110, 1131 (2014); 38 C.F.R. §§ 3.303, 3.304 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1965 to July 1972. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction of this matter has been transferred to the RO in St. Petersburg, Florida. The Board remanded the issues on appeal for additional development in September 2017 and again in April 2019. The directives have been substantially complied with, and therefore the matter is again before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). To wit, a search was conducted for any outstanding Service Treatment Records (STRs), and new medical opinions were provided. The Veteran testified at a VA Central Office board hearing before the undersigned Veterans Law Judge in April 2017. A transcript of the hearing is of record. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As basal cell carcinoma and squamous cell carcinoma are not among the diseases set forth in 38 C.F.R. § 3.309(e), a presumption based on in-service Agent Orange exposure is not warranted; however, whether there is evidence of actual direct causation of the Veteran's skin cancer due to Agent Orange exposure will be considered. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Veteran is claiming that his basal cell carcinoma and alleged squamous cell carcinoma are related to his service, to include exposure to herbicides. Alternatively, the Veteran contends that sun exposure while in Vietnam caused his basal cell carcinoma and squamous cell carcinoma. The Veteran's service treatment records include a history of skin disease reported at separation in June 1972. No other indication of a skin disability or treatment is noted in-service. The Board notes that in an April 2004 rating decision, the RO denied the Veteran's claim for a rash. The Board notes that the U.S. Court of Appeals for the Federal Circuit, in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008), held that a claim for one diagnosed disease or injury cannot be prejudiced by the result in a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently. See Ephraim v. Brown, 82 F. 3d 399 (Fed. Cir. 1996). 1. Entitlement to service connection for basal cell carcinoma, to include as due to herbicide exposure is denied. As a preliminary matter, the Veteran currently has a diagnosis of basal cell carcinoma. See April 2016 Private Treatment Note. Additionally, the Veteran has service in Vietnam, and therefore, exposure to herbicide agents and sunlight is conceded. A VA medical opinion was furnished in June 2015. The examiner noted a review of the Veteran's claims file, and opined that the Veteran's diagnosis of a basal cell cancer and alleged squamous cell cancer are less likely than not (less than 50 percent) incurred in or caused by service, including herbicide exposure and/or the history of skin disease reported at separation. The examiner supported his opinion with rationale that included "[t]he lack of support from the medical literature demonstrating a relationship between herbicide exposure and squamous cell cancers," and included various risk factors, to include sun exposure. Thus, the examiner opined that "it is more likely that other risk factors mentioned above resulted in the development of the squamous cell cancer . . . ." In April 2017 the Veteran testified at a Board hearing and testified that he had suffered from skin issues since service, and claimed that he had been diagnosed with basal cell carcinoma. The Veteran also alleged that there were missing STRs. In September 2017, the Board remanded the matter in order to afford the Veteran a VA examination to determine whether the Veteran's basal cell carcinoma was etiologically related to Agent Orange exposure or other factors, such as sun exposure. Additionally, the Board directed the examiner to consider the Veteran's submitted internet articles. In January 2018, the Veteran was afforded a VA examination which confirmed a diagnosis of basal cell carcinoma. The examiner found that at was less likely than not that the Veteran's current skin cancer was related to his service, to include herbicide agent and sun exposure. The examiner explained that even if the Veteran's skin rash began in and continued since service, that it was "highly unlikely that a recurring rash in the noted locations would be etiologically related in any way to the Veteran's claimed skin conditions of the head, neck and upper trunk regions." The examiner gave an exceptionally detailed rationale and thoroughly address the Veteran's submitted medical literature. The examiner explained that the Veteran was a layman and was misinterpreting the findings of his submitted medical literature. The rationale described skin complaints in the head/neck region as beginning in 2005, 33 years after separation from service. The examiner stated that the Veteran's greater than 60 years of sun exposure outside of service, especially that which occurred during his initial 23 years of life, are his "greatest etiologic risk(s)" for the development of skin cancer. The examiner explained that the Veteran was born in Kentucky, was raised in Florida, and work construction in that state prior to enlistment into the military. Additionally, the examiner cited medical literature at length in support of her conclusion. In September 2018, the Veteran submitted additional medical research regarding a possible association between skin cancers and herbicide agent exposure. The Board again remanded the matter in April 2019 in order to obtain any outstanding STRs as identified by the Veteran in the April 2017 Board hearing. Additionally, the Board requested an addendum opinion which addressed the Veteran's recently submitted medical articles. Upon remand, the RO conducted an exhaustive search for the Veteran's allegedly missing STRs, but was unable to locate such. The Veteran was notified that these records were unable to be located in December 2020. The Veteran submitted a "buddy statement" from his previous spouse in November 2019. The Veteran's ex-wife wrote that she had witnessed lumps or rashes behind his ears and neck. The Veteran was afforded an addendum for his claimed skin disabilities in February 2020. The examiner opined that the Veteran's basal cell carcinoma was less likely than not related to his service, to include herbicide agent or sun exposure. The examiner cited current medical literature finding a there was "inadequate or insufficient evidence to determine association between exposure to [herbicide agents]" and "non-melanoma skin cancer (basal cell and squamous-cell)." Again, the examiner cited sun exposure in the Veteran's youth as the likely etiology of his current basal cell carcinoma. The examiner also explained why the Veteran's submitted internet articles did not support the interpretations made by the Veteran. The Veteran has submitted objections to the June 2015 and January 2018 VA examiner's credentials. The Veteran cited low evaluations on an internet rating site, and the fact that both examiners were "internists." The Board acknowledges these complaints and the Veteran's contentions that the examiners' opinions were incorrect, but finds no specific reason why any examiner lacked the requisite medical knowledge or abilities to opine on the matter. The examiners' combined opinions are probative because they are based on an accurate medical history and provides an explanation that contain clear conclusions and supporting data that medical research does not support a finding that Agent Orange causes basal cell carcinoma. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, as the January 2018 and February 2020 examiners explained, the Veteran had other more likely risk factors for the development of basal cell carcinoma, such as sun exposure in childhood. Although the Veteran is competent to report symptoms of his formally diagnosed basal cell carcinoma, he is not competent to relate basal cell carcinoma to active-duty exposure to Agent Orange or sun exposure. Basal cell carcinoma is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377, 1377 n.4. As such, the Veteran is not competent to provide an opinion as to the etiology of the Veteran's skin cancer and the appellant's statements in this regard lack weight. Consequently, without any competent evidence supporting the appellant's contention, more probative weight is given to the competent medical evidence. The preponderance of the evidence is against the issue of service connection for basal cell carcinoma. The benefit-of-the-doubt rule has been considered, but the weight of the evidence is against the claim. See Gilbert, 1 Vet. App. at 57-58; 38 C.F.R. § 3.102. The claim of service connection for basal cell carcinoma is denied. 2. Entitlement to service connection for squamous cell carcinoma, to include as due to herbicide exposure is denied. The Board incorporates the above discussion by reference. VA treatment records show findings suspicious for a squamous cell carcinoma in 2014, however, that diagnosis was not confirmed based on biopsy results. Medical reports as early as July 2014 indicate a "working diagnosis of 'squamous cell'" however that diagnosis has never been confirmed. In April 2019 the Board remanded the matter in order to obtain an addendum opinion to confirm any diagnosis of squamous cell carcinoma. In a February 2020 VA examination report, an examiner clarified that there was no current diagnosis of squamous cell carcinoma. The examiner explained that while records contain evidence of a past history of squamous cell carcinoma, this was likely due to the Veteran's self-reports to the note writers, and that there had been no treatment notes that "actually documented SSCA at those times." The examiner cited recent negative biopsy results. Additionally, the examiner explained that there was no established cause and effect relationship between herbicide exposure in Vietnam and the Veteran's claimed squamous cell carcinoma, as detailed in the above section. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997). As such without a current diagnosis or a diagnosis during the pendency of the appeal, the Veteran lacks the evidence necessary to substantiate his claim for service connection. Although the Veteran is competent to report his skin symptoms, he is not competent to diagnose squamous cell carcinoma or to relate it to active-duty exposure to Agent Orange. Squamous cell carcinoma is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377, 1377 n.4. As such, the Veteran is not competent to provide a diagnosis or an opinion as to the etiology of his skin cancer and his statements in this regard lack weight. Consequently, without any competent evidence supporting the Veteran's contention, more probative weight is given to the competent medical evidence. The preponderance of the evidence is against the issue of service connection for squamous cell carcinoma. The benefit-of-the-doubt rule has been considered, but the weight of the evidence is against the claim. See Gilbert, 1 Vet. App. at 57-58; 38 C.F.R. § 3.102. The claim of service connection for squamous cell carcinoma is denied. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.