Citation Nr: 21066156 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 10-12 927 DATE: October 28, 2021 ORDER Entitlement to service connection for basal cell carcinoma, claimed as skin cancer, is denied. FINDING OF FACT Basal cell carcinoma was not shown in service, or for many years afterward, and is not otherwise related to service, to include presumed exposure to herbicide agents in Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for basal cell carcinoma have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to March 1971, including service in the Republic of Vietnam from March 1970 to March 1971. Additionally, he had active duty for training (ACDUTRA) from October 1987 to January 1988. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in June 2017 when it was remanded for a Board hearing. In August 2018, the Veteran testified at a Travel Board Hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. The issue on appeal was again remanded by the Board for further development in February 2019 and August 2020. Here, substantial compliance with the Board's prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Laws Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). Pertinent here, skin cancer is considered a "chronic disease" under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C. § 1116 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). 1. Entitlement to service connection for skin cancer The Veteran is currently diagnosed with basal cell carcinoma. See e.g., September 2019 Mid-Cities Dermatology Clinic report. The Veteran seeks service connection for his skin cancer., which he contends resulted from exposure to herbicide agents during service in Vietnam. Service personnel records establish that the Veteran had service in Republic of Vietnam during the "Vietnam Era," from March 1970 to March 1971. Thus, his exposure to herbicide agents therein is presumed. However, because basal cell carcinoma is not listed as a disease that may be presumptively service-connected due to exposure to herbicide agents, service connection under 38 C.F.R. § 3.309 (e) is not warranted. The Board next finds that basal cell carcinoma did not have its onset in service and there is no evidence of chronic in-service symptoms of basal cell carcinoma. Service treatment records are negative for complaints, treatment, or diagnosis for basal cell carcinoma. At the March 1971 service separation examination, the examiner's clinical examination did not reflect any reported complaints, findings, or diagnosis of a skin condition, to include basal cell carcinoma, and the Veteran reported that he was in good health. Additionally, the Veteran has not contended that he sought treatment for skin cancer in service. The Board next finds that the weight of the evidence is against finding that the Veteran's basal cell carcinoma symptoms have been continuous since service separation in 1971. Following service separation, the evidence of record shows no complaints, diagnosis, or treatment for basal cell carcinoma or skin rashes until over three decades later in 2009, when the Veteran underwent excision of a basal cell carcinoma. The absence of post-service findings, diagnosis, or treatment for nearly 40 years after service is one factor that tends to weigh against a finding of continuous basal cell carcinoma symptoms after service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). The Veteran has stated, and the record shows, that he was first diagnosed and treated for basal cell carcinoma in 2009. Accordingly, service connection on a presumptive basis is not warranted. The Board next finds that service connection is also not warranted on a direct basis as the preponderance of the evidence is against a finding of a nexus between the Veteran's current diagnosis of basal cell carcinoma and his active-duty service. Turning now to the post-service evidence of record, the Veteran testified at his Board hearing in August 2018 that he was constantly exposed to Agent Orange in the field. He added that while in an open aircraft, he was directly sprayed by Agent Orange which soaked his flight suit and he had to remain in the flight suit the entire day. He stated that he has not had a physician relate his skin cancer to his Agent Orange exposure. A September 2019 dermatology report notes that the Veteran was a previous patient in 2009 and had a basal cell carcinoma of the left medial canthus, treated by Mohs, in June 2009. The examiner noted that there was no recurrence of the non-melanoma skin cancer of the left medial canthus. The Veteran was also treated for a neoplasm of the left nose, which was diagnosed by biopsy as actinic keratosis. The Veteran was also diagnosed with seborrheic keratosis. The Veteran was afforded a VA skin examination in February 2021. The VA examiner opined that the Veteran's basal cell carcinoma was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reviewed the Veteran's claims folder, including all VA and private medical records and the hearing transcript. Physical examination showed a scar of the left medical canthus. The examiner also noted that the American Academy of Dermatology had reviewed several studies and concluded that there was inconclusive evidence of an increased risk of skin diseases, including nonmelanoma skin cancers in Vietnam veterans exposed to Agent Orange. The examiner added that most basal cell skin cancers are caused by repeated and unprotected exposure to ultraviolet rays. The Board finds the February 2021 VA opinion to be adequate, competent and probative. The opinion is supported by adequate rationale based on the Veteran's complete history and accurate facts of this case. The VA examiner also specifically considered medical studies in her review of medical evidence. The Veteran is competent to report any observable skin symptoms of basal cell carcinoma; however, he is not competent to offer an opinion as to its etiology, as the etiology of basal cell carcinoma relates to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007). On the contrary, the Board finds that the VA examiner's probative medical opinion outweighs the lay assertions in this case. The opinion provided an articulated opinion with supported reasoned analysis explaining why the Veteran's basal cell carcinoma was less likely than not related to his military service or exposure to herbicide agent exposure. There are no other opinions of record. The Veteran has not submitted competent evidence supporting his claim that his skin cancer is related to his in-service herbicide exposure. "It is the veteran's 'general evidentiary burden' to establish all elements of his claim." Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). VA "is required to reject a disability claim if the claimant fails to put forth sufficient evidence showing that he suffered an injury or incurred a disease during service." Holton, 557 F.3d at 1370. In conclusion, the preponderance of the evidence is against a finding that the Veteran's skin cancer is related to service, to include herbicide exposure, and therefore weighs against the Veteran's claim of entitlement to service connection for basal cell carcinoma. As such, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Beach, 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.