Citation Nr: 21069458 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-41 268 DATE: November 18, 2021 ORDER Service connection for basal cell carcinoma (skin cancer), to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran's diagnosis of basal cell carcinoma is not listed or contemplated among chronic diseases for service connection on a presumptive basis under applicable regulations. 2. The Veteran served in the Republic of Vietnam from November 1968 to July 1969 during the Vietnam Era and is presumed to have been exposed to herbicides. 3. The Veteran's diagnosis of basal cell carcinoma is not listed among the diseases presumptively associated with exposure to certain herbicide agents under applicable regulations. 4. The Veteran's basal cell carcinoma was not demonstrated in or directly related to an occurrence during active service to include herbicide and sun exposures. CONCLUSION OF LAW The criteria for entitlement to service connection for basal cell carcinoma (skin cancer), to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from August 1967 to August 1969. The Veteran died in November 2019. The appellant filed this case as the surviving spouse. In September 2020, the appellant was deemed to be a valid substitute claimant for the purposes of processing the Veteran's appeal to completion. In June 2019, August 2020, and March 2021 the claim on appeal for service connection for basal cell carcinoma was remanded for additional evidentiary development. There was substantial compliance with these remand directives for the issue discussed below on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, VA examinations for scars/disfigurement and skin diseases were provided in July 2019 and a VA medical opinion was provided in July 2019, as well as an addendum VA medical opinion in November 2020. The most recent VA medical opinion in November 2020 is adequate as it was based on a review of accurate factual history and sufficient information was provided to allow the Board to render an informed determination. The appellant was also requested in an August 2021 notice letter to complete and return a VA Form 21-4142 and VA Form 21-4142a providing authorization for VA to obtain outstanding private treatment records from Dr. P. T. at DermOne Dermatology Centers in Toms River, New Jersey and from Dr. C. S. at Certified Dermatology in Manahawkin, New Jersey. As of this date, no response has been received by the appellant permitting such authorization. This issue was also readjudicated in June 2020, November 2020, and September 2021 supplemental statements of the case (SSOCs). The case has been returned to the Board for appellate review. Neither the appellant nor her representative have raised any issues with the duty to notify or duty to assist with regards to the issue discussed below on the merits. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to service connection for basal cell carcinoma (skin cancer), to include as due to exposure to herbicide agents Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection can also be established through application of statutory presumptions, including a specified list of "chronic diseases" when manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, the Veteran served in the Republic of Vietnam from November 1968 to July 1969 during the Vietnam Era and is presumed to have been exposed to herbicides. If a veteran was exposed to an herbicide agent during active military, naval, or air service, a specified list of diseases shall be service connected if manifests to a compensable degree at any time after service. See 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e); McCartt v. West, 12 Vet. App. 164, 166 (1999). Review of the evidentiary record shows the Veteran's diagnosis of basal cell carcinoma during the appeal period, as noted in June 2014 and July 2019 VA examination reports for skin diseases. As a result, the Board finds the element of a current disability has been met in this case. The Veteran's diagnosis of basal cell carcinoma is not listed or contemplated among the list of chronic diseases under 38 C.F.R. § 3.309(a) or diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e). There were no findings or assertions that the Veteran had chloracne, which is contemplated among the list of diseases associated with certain herbicide agents. As a result, consideration of service connection for this claim on presumptive bases as a chronic disease or due to herbicide exposure is not warranted in this case; however, direct service connection remains available. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). During the appeal, the Veteran asserted that his skin cancer was caused in-service due to exposure to the sun and herbicide agents. Review of the Veteran's service treatment records shows treatment for a rash on his right hand and wrist in June 1969 and a noted urticaria reaction from desensitization injections in October 1968. At the April 2019 Board hearing, the Veteran reported having spots on his skin since he came home from Vietnam. The Veteran is competent to report such symptoms and observations because this requires only personal knowledge as it comes through one's senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, as noted above, the Veteran is presumed to have had in-service herbicide exposure. As a result, the Board finds the element of an in-service occurrence has been met in this case. In an October 2013 statement, Dr. P. T. at DermOne Dermatology Centers noted the Veteran underwent dermatologic care for over 10 years for an extensive history of skin cancer that is likely associated with his active duty service while in Vietnam. Dr. P. T. did not provide any explanation for her conclusory opinion. Additionally, in a May 2019 statement Dr. C. S. at Certified Dermatology noted the Veteran had a significant skin cancer history treated on a monthly basis for approximately 12 years, including surgery, as a result of excessive exposure to equatorial sun. No further explanation was provided. These October 2013 and May 2019 private medical opinions were not supported by rationales. Without a clear rationale for the opinions, the Board finds that they are of limited probative value. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (the Board is not required to accept unsubstantiated or ambiguous medical opinions as to the origin of a veteran's disorder). On the other hand, review of the June 2014 VA examination report shows the VA examiner noted the Veteran's skin cancer diagnosis with tumors and neoplasms of the skin, including malignant melanoma, service in Vietnam, and family history of skin cancer. The examiner stated that the Veteran's younger brother had "similar skin cancers." The VA examiner opined that it is less likely than not that the Veteran's skin cancer is related to his military service and explained that the major risk factors for skin cancers are sun exposure and genetics and that the Veteran had sun exposure for about two years in service and more than 30 years in civilian life before developing skin cancer. Nevertheless, the VA examiner did not address the Veteran's contention that his skin cancer is due to exposure to herbicide agents. Review of the July 2019 VA examination report shows the VA examiner opined that it is less likely than not the Veteran's skin cancer was caused by his exposure to sun during service and explained that the Veteran had over 30 years of sun exposure when he was not in service, two years of sun exposure when he was in service, and in-service urticarial reactions from allergy shots are not a risk factor for skin cancer. This opinion and rationale are probative evidence against direct service connection for the Veteran's skin cancer. The VA examiner also opined that it is less likely than not the Veteran's skin cancer is a result of herbicide exposure as it is not a linked condition. The Board finds the rationale provided regarding a nexus between the Veteran's service cancer and in-service herbicide exposure was insufficient as it was merely based on a finding that the list of diseases and conditions presumptively linked with herbicide exposure does not include basal cell carcinoma. It will not be afforded any probative weight. In November 2020, a VA physician sufficiently explained why the Veteran's skin cancer is less likely than not began during active service or is related to an incident of service, including reports of in-service sun exposure and herbicide agent exposure. The VA physician reviewed the claims file, noted that the Veteran served in Vietnam, and acknowledged the Veteran' shearing testimony that he had no family history of skin cancer, and that he had spots on his hands at discharge from service. The examiner concluded that the Veteran's service treatment records showed episodes of urticarial reaction attributed to desensitization shows he was received for rhinitis, and that his separation examination reported normal skin, and no skin problems or skin cancer were noted. The physician stated that the Veteran had several skin cancers on his scalp and arms over the previous 20 years of his life. He had been treated with surgery and nitrogen freezing. Although the Veteran stated he did not have a family history of skin cancer, the examiner noted that the Veteran reported to a VA examiner in June 2014 that his younger brother had skin cancer. The physician agreed with the July 2019 examiner's conclusions regarding direct service connection. The physician noted that in a 2018 National Academy of Sciences update regarding herbicide agents, scientists found that there was inadequate or insufficient evidence to determine whether there is an association between exposure to herbicides and basal-cell skin carcinoma. The physician also explained that, [i]n the absence of scientific evidence of herbicide agent exposure being identified as a risk factor for the development of basal-cell cancer of [the] skin, the short time (2 years) that the Veteran was in service, and more than 30 hears have elapsed since separation from service/ herbicide agent exposure and developing skin cancer, it is my opinion that basal-cell carcinoma in [the Veteran] is not likely began during active service, and less likely due to or related to his reports of in-service sun exposure and herbicide agent exposure. The opinion regarding herbicide exposure is well reasoned and is probative evidence against the claim. The examiner explained that there was no scientific evidence showing that herbicide exposure was a risk factor for basal-cell skin cancer, and did not merely rely on the fact that it was not a presumptive condition. The physician has the requisite medical expertise to render a medical opinion regarding the Veteran's skin disorder on a direct basis and had sufficient facts and data on which to base a conclusion. There is no contradicting medical evidence of record, thus the Board finds the November 2020 VA medical opinion provides probative evidence showing that the Veteran's skin disorder was not related to an occurrence during active service, including herbicide and sun exposures. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Based on the evidence of record, there is no probative and competent evidence that demonstrates the Veteran's diagnosis of basal cell carcinoma was demonstrated in or related to an occurrence during active service, or due to herbicide exposure. See 38 C.F.R. § 3.303. In sum, the Board finds that the evidentiary record does not contain positive probative evidence to establish that the third criterion to establish service connection on a direct basis has been met. The Board has considered the Veteran's reported history of symptomatology related to his skin disorder throughout the appeal period. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through one's senses. Layno, 6 Vet. App. at 470. Because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to its existence or etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, the Veteran was competent to describe observable symptoms, and his descriptions are credible. However, in this case, the lay statements do not rise to a level of competency to offer a probative opinion as to the etiology of his diagnosed skin disorder. Determining the etiology of the Veteran's basal cell carcinoma requires inquiry into internal physical processes are not readily observable and are not within the competence of the Veteran or the appellant in this case, who have not been shown by the evidence of record to have medical training or skills. As a result, their assertions as to etiology are not competent evidence. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim on a direct basis, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.