Citation Nr: 21068786 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-23 064 DATE: November 12, 2021 ORDER Service connection for basal cell carcinoma is denied. Service connection for squamous cell carcinoma is denied. FINDINGS OF FACT 1. The Veteran served on active duty from April 1967 to March 1969. 2. Basal cell carcinoma and squamous cell carcinoma were not shown in service, not shown to a compensable degree within one year of service, symptoms were not continuous since service; current basal cell carcinoma and squamous cell carcinoma are not causally or etiologically related to service. CONCLUSIONS OF LAW 1. Basal cell carcinoma was not incurred in or aggravated by service, cannot be presumed to have been incurred therein, and is not related to a service-connected disability. 38 U.S.C. §§ 1110, 5103A, 5103(a) (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2021). 2. Squamous cell carcinoma was not incurred in service, nor may it be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2019. A transcript of the hearing is associated with the claims file. In September 2019, the Board denied the appeals. The Veteran appealed to the Veterans Claims Court. In August 2020, the Court Clerk granted a Joint Motion for Remand (JMR), vacating the September 2019 Board decision and remanded the appeal to the Board for action consistent with the JMR. In April 2021, the Board remanded the issues. They have now returned to the Board for appellate review. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran served in the Republic of Vietnam between January 1962 and May 1975. The Veteran's service personnel records reflect that he served in the Vietnam from March 1968 to March 1969; therefore, he is presumed to have been exposed to herbicides. Private treatment records reflect treatment over many years for skin lesions, diagnosed as actinic keratosis, solar keratosis, basal cell carcinoma, and squamous cell carcinoma. Therefore, the Veteran has current diagnoses. As to in-service incurrence, service treatment records (STRs) are silent for complaint, treatment, or diagnosis of a skin disorder, to include the separation examination. Therefore, the second element of service connection is not met. Moreover, the competent medical evidence does not associate the Veteran's various skin diagnoses with service. Further, none of the diagnoses are presumed associated with herbicide exposure. Additionally, no incident of cancerous lesions was found within one year of service discharge and there was no evidence of continuity of symptoms of such disorder to warrant service connection as a chronic disorder presumed to be related to service. The Veteran testified that he was treated around 1974 or 1976 for skin cancer. The records of this treatment are not in the claims file. Nevertheless, even assuming treatment as early as 1974, this was 5 years after service separation, outside the 1-year presumptive period. Next, the evidence does not support service connection on a direct basis. A May 2017 private opinion from Dr. SLG stated that the Veteran had been treated for many skin lesions since January 2005 when he began treatment with that practice and that a connection to herbicides could not be ruled out considering the Veteran's extensive history of skin cancer. Additionally, a July 2015 letter from Dr. WJG, who treated the Veteran's service-connected squamous cell carcinoma of the larynx opined that, although there was always uncertainty regarding the etiology of a malignancy in any one patient, he believed that it was likely, given the history of not only the head and neck malignancy but also skin malignancies that exposure to herbicides was a potential contributing factor to the diagnoses. The July 2015 opinion is vague with regard to whether it was intended to provide a positive nexus for the cancer of the larynx, which is a presumptive disability for herbicide exposure and is already service-connected, or for skin cancers, or both. The opinion does not suggest that the squamous cell carcinoma of the skin is associated in any way with the service-connected cancer of the larynx, which is not on appeal. Nevertheless, the Board finds that both opinions to be little more than speculation. That herbicides cannot be ruled out as a cause or are likely to be a potential cause of the skin cancer does not establish that there is at least a 50 percent probability that there is a relationship. A speculative opinion cannot be the basis for service connection. Moreover, a May 2021 VA examiner opined that it is less likely than not that the Veteran's basal cell and squamous cell carcinoma were due to exposure to Agent Orange. The examiner indicated that despite the private treatment records noting that the Veteran's skin cancers may have been herbicide-related, the literature does not support a nexus. The examiner specified that skin cancer, even in the presence of head and neck cancer, has not been demonstrated to be due to herbicide exposure, stating that review of the literature revealed that further studies would be necessary to support a clinical nexus. Accordingly, the medical evidence does not support service connection on a direct basis. As malignant tumors are a chronic disease under 38 C.F.R. § 3.309, presumptive service connection will be considered. Nevertheless, no chronic disease or injury was shown in service. As noted, STRs are negative for any complaint, treatment, or diagnosis related to basal cell and squamous cell carcinomas. Also significant is the lack of such complaints or findings at separation. Therefore, the medical evidence does not support presumptive service connection on a "chronic disease or injury shown in service" basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. In this regard, not only was the Veteran discharged in March 1969 without findings of a chronic skin disorder, treatment for either basal cell or squamous cell carcinoma was not noted until January 2005. As he was discharged in 1969 and a disorder was not identified until over 35 years later, the medical evidence does not support service connection on a "continuity of symptomatology" basis. Further, the disorders did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. The Veteran separated from service in 1969 but symptoms were not recorded until 2005. This evidence does not support presumptive service connection on a "manifest within one-year from separation" basis. Moreover, even accepting his lay statements that he developed skin symptoms in the mid-1970s, this is also outside the 1-year presumptive period. Therefore, the medical evidence does not support presumptive service connection on any basis. The Board has considered the Veteran's lay statements and testimony that his disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. M. Schaefer, 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.