Citation Nr: 21067547 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-13 633 DATE: November 4, 2021 ORDER Entitlement to service connection for eczema, to include on the basis of exposure to herbicide agents, is denied. Entitlement to service connection for skin cancer is granted. FINDINGS OF FACT 1. The Veteran's eczema is not etiologically related to the Veteran's active service, to include in-service herbicide agent exposure. 2. Resolving reasonable doubt in favor of the Veteran, the Veteran's skin cancer is etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for eczema have not been met. 38 U.S.C. §§ 1110, 1116, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. 2. The criteria for service connection for skin cancer have been met. 38 U.S.C. §§ 1110, 1116, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from December 1966 to December 1968. This matter is on appeal to the Board of Veterans' Appeals (Board) from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Board denied the Veteran's claim of entitlement to service connection for eczema and skin cancer. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). In a February 2021 Joint Motion for Partial Remand (JMPR), the CAVC vacated and remanded the Board's decision denying service connection for eczema and skin cancer. In June 2021, the Board remanded the issues of entitlement to service connection for eczema and skin cancer for a VA examination and medical opinions addressing whether his eczema and skin cancer were etiologically related to his in-service herbicide agent exposure. In July 2021, the requested VA examination and opinions were obtained, and the RO issued a Supplemental Statement of the Case (SSOC) in August 2021. Thus, the Board finds that there has been substantial compliance with the Board's previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998). SERVICE CONNECTION Establishing service connection generally requires (1) evidence of 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Veterans who served in Vietnam between January 9, 1962, and May 7, 1975, are presumed to have been exposed to herbicide agents, such as Agent Orange (AO), unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(1); 38 C.F.R. §§ 3.307(a)(6)(iii). Certain listed medical conditions may be granted service connection on a presumptive basis due to such exposure. 38 C.F.R. § 3.309(e). The Veteran was previously found to have served in the Republic of Vietnam. As such, Agent Orange exposure has been established. See 38 C.F.R. §§ 3.307(a)(6)(iii). The Board notes that while eczema and skin cancer are not on the list of those eligible for presumptive service connection, service connection may be granted on a direct basis if the evidence supports such a grant. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran seeks service connection for eczema and skin cancer as a result of his active service, to include herbicide agent exposure. Service treatment records (STRs) are silent for any findings, treatment, or diagnosis of eczema, skin cancer or related symptoms. Similarly, available post-service treatment records are also silent for any complaints, treatment, or diagnosis for any skin disorder, to include eczema or skin cancer. A February 2017 private provider indicated that the Veteran was exposed to Agent Orange during his service in Korea, and since that time, he was pre-disposed to the development of chloracne-like eruptions; eczema; and basal cell cancers. The provider opined that it was at least as likely as not to have been caused by or the result of exposure to Agent Orange. At his December 2019 Board hearing, the Veteran testified that he first started to notice itchy skin on his hands and arms while he was in Korea. He reported that it had constantly bothered him, and he continued to experience those symptoms. He indicated that he did not seek treatment for his eczema symptoms in service; he just dealt with the symptoms. He also testified that he had skin cancer on his ears and eyes; he had 14 spots burned off his arm at one time, but it kept coming back. He indicated that he had skin cancer removed from his ear right after he separated from service in approximately the late 1960's to early 1970's. His wife was also present at the hearing; she reported that they had been married for 37 years and ever since she had been with him, he had been receiving treatment for his skin. She noted that he had burning and tingling rashes on his hands and had to have cancer burned off his skin. When asked about sun exposure in service, the Veteran reported that he had probably been sunburned while in Korea because it was so hot there, but he had not sought treatment for sunburn during service. The Veteran was afforded a VA examination in July 2021 for his skin disorders. The examiner noted a diagnosis of eczema and a history of basal cell carcinoma. The examination indicates that the Veteran had eczema on the bilateral hands since 1966. The Veteran reported that he was deployed overseas to Korea in 1966 and was exposed to Agent Orange; when he returned home, he would have flare-ups of skin rashes on his hands that were pruritic and worsened in the heat. Additionally, the examination indicated that the Veteran's basal cell carcinoma had resolved but it was last active in 2017; the Veteran reported that his private physician had removed multiple basal cell carcinoma lesions to the bilateral arms and face with liquid nitrogen. The Veteran reports numerous lesions, greater than 15. The examiner indicated that there was no visible scarring on the upper extremities or face on examination. The examiner opined that the Veteran's eczema was less likely than not etiologically related to service, to specifically include herbicide exposure. In this regard, the examiner noted that the Veteran contends to developing a rash-like lesions on the hands during service; he attributed his diagnosis to Agent Orange exposure during his service in Korea. The examiner nevertheless explained that medical literature does not support the association between herbicide agents and eczema, and there are no supporting documents showing chronicity of eczema or skin rashes in the claims file, to include any treatment records, to determine when the condition arose and the specific characteristics. The examiner also indicated that STRs are silent for the claimed condition. The examiner additionally opined that the Veteran's skin cancer is less likely than not etiologically related to service, to specifically include herbicide exposure. The examiner noted that the Veteran asserts that he developed cancerous lesions of the face requiring liquid nitrogen removals beginning directly after separation from the military and that he attributed his diagnosis to Agent Orange exposure while he served in Korea as well as frequent sun exposure being outdoors most of the time. The examiner explained that medical literature supports carcinoma development on the face and arms from frequent UV exposure, but not herbicide exposure. The examiner indicated that STRs and post-discharge records are silent for the claimed condition, and therefore, the Veteran's skin cancer is less likely related to agent orange or other herbicide agents, but more likely due to exposure to sun and UV without protective clothing in the heat while in Korea. Entitlement to service connection for eczema, to include on the basis of exposure to herbicide agents, is denied. After a review of the evidence, the Board finds that the preponderance of the evidence is against a finding that service connection is warranted for eczema. In making this finding, the Board finds the VA examiner's opinion is the most probative evidence of record with regard to whether his eczema is related to his active service, to include his exposure to herbicide agents. Although the Board has considered the Veteran's contention that the opinion is inadequate because the examiner failed to consider his reports that he developed eczema during service, the Board notes that not only did the examiner document these reported symptoms within the examination, but the examiner restated the Veteran's contentions in providing the opinion. Additionally, the examiner considered the Veteran's STRs, post-service medical treatment records, and herbicide agent exposure, and performed an in person examination. The VA examiner provided a medical opinion with supporting rationale that is consistent with the evidence of record. Thus, the Board finds that the examiner's opinion is adequate and the most probative evidence of record. The Board has considered the opinion from the Veteran's private provider, noting that since the Veteran was exposed to Agent Orange during service, he was pre-disposed to the development of eczema, and therefore, it was at least as likely as not to have been caused by or the result of exposure to Agent Orange. However, other than the vague and conclusory comment that Agent Orange exposure predisposed him to the development of eczema, no rationale or explanation was provided. As such, the Board affords this brief medical opinion limited probative weight and finds that it is outweighed by the VA examiner's opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board recognizes and has considered the Veteran's contention that his eczema is related to his active service, to include his in-service herbicide agent exposure. While the Veteran is competent to report his observable symptoms, to include itchy skin and rashes, he is not competent to provide a diagnosis or an etiology opinion in this case. The Board finds that the matter of the etiology of eczema is one within the province of trained professionals. As the Veteran is not shown to have the appropriate training and expertise, he is not competent to render a probative opinion regarding the medical matter upon which this claim turns. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Thus, the probative value of the VA examiner's opinion outweighs that of the Veteran, as the examiner has more education, experience and training in determining the etiology of a skin disability. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a skin disability. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and service connection must be denied. 38 U.S.C. § 5107 (b). Entitlement to service connection for skin cancer is granted. After a review of the evidence, the Board resolves reasonable doubt in favor of the Veteran and finds that service connection is warranted for his skin cancer. Initially, the Board notes that the RO denied the Veteran's claim for skin cancer based upon the July 2021 VA examiner's note that the Veteran's basal cell carcinoma had resolved. However, the Board notes that the medical evidence reflects that the Veteran had a diagnosis of skin cancer, at the very least, in 2017. In this regard, the July 2021 VA examiner indicated that the Veteran had a history of basal cell carcinoma that was last active in 2017; the date of his last treatment was 2017, which was during the period on appeal. Thus, even if the Veteran's skin cancer has not been active since 2017, the Board finds that the Veteran had skin cancer during the period on appeal. Therefore, the first element of service connection, a current disability, has been met. Additionally, despite the absence of any documentation in his STRs, the Board finds that the Veteran has competently and credibly reported that he was exposed to the sun and heat during his active service in Korea. Furthermore, the July 2021 VA examiner provided a positive nexus opinion between his skin cancer and in-service sun exposure, and the Veteran has competently and credibly reported that he had skin cancer treated immediately after his separation from service and on an ongoing basis since. Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's skin cancer is etiologically related to his active service. Therefore, resolving reasonable doubt in the Veteran's favor, service connection for skin cancer is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In light of the Board's decision to award service connection for skin cancer on a direct basis, to the extent that the record also reflects additional contentions or alternative theories of entitlement, to include presumptive service connection based on herbicide agent exposure, the Board notes that the decision to award service connection for the Veteran's skin cancer is deemed a full grant of the benefits sought on appeal. Therefore, the Board need not address these contentions or additional theories of entitlement. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.