Citation Nr: 21065648 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 13-07 039 DATE: October 27, 2021 ORDER Service connection for basal cell carcinoma (BCC) is denied. REMANDED Entitlement to a compensable rating for a skin condition is remanded. FINDING OF FACT The preponderance of the evidence weighs against a finding that the Veteran's BCC began during or is etiologically related to her active service or that it is secondary to her service-connected skin condition. CONCLUSION OF LAW The criteria for service connection for BCC have not been met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1990 to July 1991, to include service in the Southwest Asia Theater of Operations. Therefore, she is a Persian Gulf Veteran and the presumptions under 38 C.F.R. § 3.317 apply. She also served in the Reserves, to include a period of active duty for training (ACDUTRA) from November 1987 to April 1988. These claims come to the Board of Veterans' Appeals (Board) on appeal from February 2010 and December 2016 rating decisions. Regarding the Veteran's claim for service connection for BCC, she testified at a Board hearing before a now-retired Veterans Law Judge (VLJ) in September 2015. In May 2017, the Veteran was offered the opportunity to appear at another optional Board hearing before a VLJ who would decide her case. To date, she has not responded. Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). 1. Service connection for basal cell carcinoma (BCC) The Veteran contends her BCC was incurred in or caused by service. The record also reasonably raises the theory that it may be a manifestation of an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). The record further raises the theory that her BCC may be secondary to her service-connected dermatitis/eczema. Legal Criteria Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted, will be considered part of the original disorder. 38 C.F.R. § 3.310(a). Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). For veterans who served in the Southwest Asia Theater of Operations during the Persian Gulf War, service connection may be established for qualifying chronic disability that cannot be attributed to a known clinical diagnosis (referred to as an undiagnosed illness) or a medically unexplained chronic multisymptom illness (MUCMI) that is defined by a cluster of signs of symptoms, such as chronic fatigue syndrome, fibromyalgia, and gastrointestinal disorders. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2)(i). The term MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Factual Background and Analysis BCC of the right anterior neck was diagnosed and removed in 2009. The preponderance of the evidence weighs against a finding there were any manifestations, signs, or symptoms of BCC prior to then. A November 2019 medical professional opined it was less likely than not (less than a 50 percent probability) that the Veteran's BCC was due to her active duty service, reasoning that BCC is a common skin cancer in the general population and that both environmental and genetic factors contribute to its development. The medical professional further explained long term sun exposure to sunlight is the most important factor and that this was most likely the cause and noted that the Veteran short period of active service from November 1990 to July 1991. The examiner also noted that BCC is a diagnosable illness with a partially explained etiology. In January 2021, the Board remanded this claim for an opinion regarding whether BCC could be an undiagnosed illness and also for opinions regarding secondary service connection. Opinions were provided in May 2021. The medical provider opined it was less likely than not (less than a 50 percent probability) that the Veteran's BCC was a manifestation of an undiagnosed illness due to her service in Southwest Asia reasoning that the lengthy time between her service and diagnosis (18 years) weighs against this finding. In a separate opinion, the medical provider indicated it was less likely than not that the Veteran's BCC was caused by her service-connected dermatitis/eczema, reasoning that they have separate physiological pathology and were on separate locations of the Veteran's body. The medical provider also provided an opinion in the aggravation portion of the Disability Benefits Questionnaire indicating there was no physiologic link between eczema and BCC and noting that the Veteran's dermatitis/eczema were separate physiologic pathologies and were on separate locations of her body; although the provider failed to check the box "no" indicating it was less likely than not that the BCC was aggravated by the Veteran's skin-conditions, and in fact failed to check any box, it is clear from rationale that the opinion is in the negative. The medical provider further explained that BCC is caused by damage and subsequent DNA changes to the basal cells in the outermost later of skin, caused by exposure to ultraviolent light and that the Veteran's BCC is more likely due to repeated solar exposure in this fair skinned Veteran. Based on the foregoing, service connection must be denied. The opinions found no link between the Veteran's active service and her BCC (to include as due to an undiagnosed illness), and provided rationales for this reasoning, in part, that there was an extended period of time between her separation from service and her diagnosis. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that the passage of many years between discharge from active service and the continuity of symptomatology or medical documentation of a claimed disability are factors that tend to weigh against a claim for service connection). Further, the Veteran's BCC is not a medically unexplained chronic multisymptom illness (MUCMI), as it is noted to have a clear and specific etiology: exposure to ultraviolet rays. Nor is it an undiagnosed illness as BCC is a clear diagnosis. Finally, the May 2021 medical professional found no basis for the grant of service connection on a secondary basis (either caused or aggravated by) relating to the Veteran's skin condition and also provided a clear rationale for these opinions. While the Board acknowledges that a prior June 2018 opinion was ambiguous, as it stated it was at least as likely as not that the Veteran's BCC was due to service; however, the actual rationale supports a negative opinion, and therefore, the Board does not give any weight to this opinion. The Board recognizes that the Veteran believes her BCC is due to her active service (to include due to exposure to toxins in the Southwest Asia Theater of Operations) and/or that is secondary to her service-connected skin condition; however, she has not demonstrated she possesses the medical education, training, or experience to make such a determination. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of BCC. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Compliance with Prior Remand Directives The claim for service connection for BCC was previously before the Board in January 2016, July 2017, July 2019, and most recently in January 2021. In January 2016, the claim was remanded to afford the Veteran a skin disorders examination; however, the July 2016 examiner only discussed the Veteran's service-connected skin condition and not her BCC. In July 2017, the Board remanded the Veteran's claim to provide her with an examination and obtain an opinion regarding the etiology of BCC, to include whether it was a manifestation of an undiagnosed illness or MUCMI, and also to include whether it is secondary to her service-connected skin condition. In July 2019, the Board found the June 2018 opinion and addendum were ambiguous and remanded the claim for clarifying opinions. In January 2021, the Board again remanded the Veteran's claim, finding that neither the June 2018 and November 2019 opinions did not comply with prior remand directives. While they offered reasoned opinions as to direct service connection and whether the Veteran's BCC is a manifestation of a MUCMI, neither examiner offered an explicit opinion regarding whether the Veteran's BCC was a manifestation of an undiagnosed illness. The Board also noted that the June 2018 examiner's opinions regarding secondary service connection lacked a rationale and that the November 2019 examiner did not provide an opinion regarding secondary service connection. New opinions which comply with the remand directives were obtained in May 2021. Finally, all outstanding records have been obtained and the Veteran's claim was readjudicated in an August 2021 Supplemental Statement of the Case. Therefore, the Board finds there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). REASONS FOR REMAND 1. Entitlement to a compensable rating for a skin condition is remanded. The Veteran is claiming an initial compensable rating is warranted for her skin conditions (dermatitis, bullous disorder, and lichen simplex). Initially, the Board notes that where a claimed disability, such as a skin disorder, is cyclical or fluctuating in severity, VA should provide the veteran with an examination during an active stage of the disability. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994) (holding that an examination during an inactive stage of a disability was inadequate where it was unclear whether the examiner considered prior manifestations of the disability). At a November 2012 skin examination, the Veteran indicated that she currently did not have a rash but that it came on in the summer. At a July 2016 skin examination, the Veteran indicated her skin condition was more scattered and worse in hot weather. Additional examinations were performed in June 2018 and May 2021. While the Board regrets the delay, it finds that an additional remand is required to attempt to obtain an examination while the Veteran's skin condition is in an active stage; if this is not possible, a new examination is still warranted and the examiner must consider the Veteran's competent lay statements regarding her condition. While this case is in remand status, all outstanding VA treatment records must be obtained and associated with the evidence of record before the Board. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran is informed that if she wishes for additional evidence to be considered, such as pictures, she may submit this for consideration while her appeal is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the electronic evidence of record. 2. Following completion of step 1, afford the Veteran an examination to determine the current severity of her service-connected skin condition. The examiner should obtain from the Veteran and record in the examination report a complete description of the symptoms she experiences. If possible, this examination should be scheduled during an active stage of his skin disorder and the examining facility should communicate with the Veteran as necessary to maximize the likelihood of performing an examination during an active stage of this disorder. Following an examination, review of the evidence, and with consideration of the Veteran's statements, the examiner is requested to provide the following information: (a) Identify the area(s) of the Veteran's body affected by her service-connected skin condition, to include the percentage of the entire body affected, and the percentage of exposed areas affected. If it is not possible to schedule the Veteran for an examination during an active stage, the examiner's report must include documentation of the Veteran's lay statements regarding the symptoms and locations of her skin condition during an active stage. (b) Discuss whether the Veteran has been prescribed any systemic therapy or topical therapy for her service-connected skin condition during the appeal period. If so, state the duration of treatment. (c) Discuss whether the Veteran has any functional impairment due to her service-connected skin disorder, to include any impairment in occupational functioning. A complete rationale should be provided for any opinion expressed. If the examiner is unable to formulate any opinion without resorting to speculation, he or she must explain why this is so. (CONTINUED ON NEXT PAGE) 3. The AOJ must review the examination report and opinion to ensure that it complies with the Board's specific remand directives herein. If deficient in any manner, corrective action must be taken at once. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.