Citation Nr: 21072714 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 07-29 672 DATE: December 6, 2021 ORDER Entitlement to service connection for a skin disability, to include squamous cell carcinoma, to include as due to herbicide agent exposure, is denied. REMANDED Entitlement to service connection for a colon disability, to include as due to herbicide agent exposure, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a skin disability, to include squamous cell carcinoma, began during active service or is otherwise related to an in-service injury or disease, to include herbicide agent exposure. CONCLUSION OF LAW The criteria for establishing service connection for a skin disability, to include squamous cell carcinoma, to include as due to herbicide agent exposure, have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran service on active duty from October 1966 to October 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in November 2010, December 2013, August 2015, and June 2021, where the issues were remanded for additional development. They now return for further appellate review. The Veteran testified before the undersigned Veterans Law Judge in September 2010, a transcript of which is of record. Service Connection for a Skin Disability. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran asserts that he has a history of skin conditions that are the result of his military service, to include his herbicide agent exposure. Upon VA examination in September 2021, the Veteran was diagnosed with a history of seborrheic and actinic keratosis, as well as squamous cell carcinoma. The Veteran's service treatment records (STRs) show no complaints, diagnosis, or treatment related to a skin disability. As the Veteran reported other ailments during service, and such problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems with his skin during service the Board would expect that he would have reported these problems to medical professionals. During the October 1968 separation examination, other than noting a vaccination scar of the upper left arm and freckles, evaluation of the skin was normal. Post-service, the record is negative for a skin disability for decades, with the medical evidence noting the Veteran first being diagnosed with squamous cell carcinoma in 1999 and again in 2009. As to keratosis, the Veteran has reported that he began noticing brown, rough spots on his body around the year 2000. See September 24, 2021 VA Skin Diseases Disability Benefits Questionnaire. To the extent the Veteran has asserted a continuity of symptomatology beginning during service as to any skin condition, the Board finds such statements to lack credibility as they are in direct conflict with the Veteran's report of medical examination at separation from service where examination was normal, and there was no indication at the time that the Veteran was experiencing any problems with his skin. The Board finds the report of medical examination at separation from service to be more reliable any recent assertions as it was done contemporaneous to service and for the purpose of identifying a disability at that time. The Board notes, however, that the Veteran has asserted that his skin conditions over the years are the result of herbicide agent exposure. 38 C.F.R. § 3.309(e) provides that veterans who have been exposed to an herbicide agent during active service (including "Agent Orange") are entitled to presumptive service connection for certain listed diseases. Veterans who served specifically in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed to an herbicide agent. 38 U.S.C. § 1116(f); 38C.F.R. §3.307(a)(6)(iii). Here, the Board concedes the Veteran's exposure to herbicide agents based on his Vietnam service from February 1968 to October 1968. While the Veteran carcinoma and keratosis conditions are not one of the presumptive diseases enumerated under 38C.F.R. §3.309(e), service connection is not precluded on a direct basis. The Board remanded the claim in November 2013 for a VA examiner to determine whether the Veteran has a skin disability that at least as likely as not had its clinical onset during service or was otherwise related to any in-service event, injury, or disease, to specifically include exposure to herbicides. In March 2014, it was noted that the Veteran reported experiencing recurrent skin rashes during the appellate period for which he was prescribed medication but noted that there was no currently manifested skin disorder. The VA examiner noted that the Veteran had squamous cell carcinoma, which was completely excised without residual manifestations in September 2009. As to etiology, the examiner stated that, because the skin condition that the Veteran described as a reoccurring rash had no findings at the time, he was unable to provide an opinion. With regard to the 2009 squamous cell carcinoma, the VA examiner opined that the condition was less likely than not incurred in or caused by the Veteran's active service because "[s]quamous cell carcinoma is from sun exposure and [the Veteran] had very limited exposure of military service and the cancer developed many years after the military." However, the Veteran's medical treatment records have noted the additional diagnosis of seborrheic keratosis. Because the VA examiner indicated that the Veteran has an additional unidentified skin condition that undergoes periods of remission and recurrence, VA must attempt to provide a medical examination during the period of recurrence in order to provide a proper disability rating. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (concluding that an examination during a remission phase was inadequate because it did not "accurately reflect the elements of the present disability"). As such, the Board remanded the claims for additional examinations and opinions, which were provided in December 2017. However, the examiner only provided an etiological opinion as to the Veteran's carcinoma history, opining in the negative that it is less likely than not related to in-service herbicide exposure. Again, the examiner related squamous cell carcinoma to sun exposure. No opinion was provided for any additional skin disability noted during the appeal or proximate thereto, nor was there any mention of the rashes the Veteran described during his previous examination. Thus, the claim was again remanded in June 2021 for an examiner to address any and all skin conditions noted during the appeal and their relationship to his service, to include herbicide agent exposure. The additional examination and opinion were provided in September 2021, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner noted the Veteran's history of squamous cell carcinoma, as well as both seborrheic and actinic keratosis. Again, the examiner provided the negative opinion that it was less likely than not that any of the Veteran's skin disabilities during the appeal, to include squamous cell carcinoma and seborrheic and actinic keratosis, are related to his military service, to include herbicide agent exposure. In support of this conclusion, the examiner explained that, based on medical literature specific to the etiologies of the Veteran's skin conditions, carcinoma of the skin is usually caused by sun exposure and burns, not herbicide agents. Similarly, the examiner noted that actinic keratosis also typically develops from the damaging effects of ultraviolet radiation to the skin accumulated over a lifetime of sun exposure. As to the Veteran's history of seborrheic keratosis, the examiner noted that this condition is caused by the benign proliferation of immature keratinocytes, resulting in well-demarcated, round or oval, flat-shaped macules. Seborrheic keratosis is typically slow-growing, can increase in thickness over time, and they rarely resolve spontaneously. It is the most common type benign skin tumor, the examiner continued, affecting over 80 million Americans, and typically seen in patients who, like this Veteran, are greater than 50 years of age, and become more frequent as one ages. The Board finds the above opinions from the VA examiners, as a whole, to be highly probative as they were made by medical professionals with consideration of the specific facts in this case and after examination of the Veteran. There has also been no medical opinion or competent and credible evidence provided during this appeal's lengthy history that is in significant conflict with the VA medical opinions. The Board has considered the Veteran's statements, to include his assertions that his skin conditions are is related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., skin problems (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson, 581 F.3d at 1313.The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND While the Board sincerely regrets further delay, the Veteran's remaining claim of entitlement to service connection for a colon disability must again be remanded for additional development. As the Board noted in its August 2015 remand, a VA examiner in March 2014 diagnosed the Veteran with colon polyps and opined that they are unrelated to his military service because "[b]enign colon polyps are condition of life." Not only was a sufficient explanation or rationale not provided, but the opinion did not address the Veteran's exposure to herbicide agents and his assertion of drinking contaminated water. As such, an additional examination was afforded in December 2017. Again, however, as the Board noted in June 2021, the examiner failed to provide a sufficient rationale in the negative opinion that it was less likely than not that any current digestive system disability had its clinical onset during service or is in any way related or attributable to any in-service disease, injury or event, to specifically include exposure to herbicides and/or drinking contaminated water. Despite noting that the opinion was based on a "thorough C-file review, review of all available medical records and current peer reviewed medical literature," the examiner's rationale merely stated that there were no records of the Veteran complaining of an intestinal condition until more than 30 years after service. No reference was made to any specific medical literature in coming to this conclusion, to include literature pertaining to herbicide agent exposure or contaminated drinking water. Thus, the claim was once again remanded. Unfortunately, an additional remand is necessary. In providing another negative opinion that the Veteran's gastrointestinal issues were less likely than not related to service, a September 2021 VA examiner again merely noted the length of time between his service and the first documentation of diverticulitis and non-cancerous polyps in 1999. Again, no reference was made to any specific medical literature, to include literature pertaining to herbicide agent exposure or contaminated drinking water. The Board stresses that this matter has been on appeal since the original rating decision that denied the claim in April 2006 and is now being remanded for the fifth time. To avoid further delay, the RO should make every effort to ensure substantial compliance with the Board's below remand directives. The matter is REMANDED for the following action: 1. Ask the Veteran to identify any outstanding treatment records relevant to his claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After any records development has been completed, send the claims file, including a copy of this Remand, to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current colon disability, to include (but not limited to) polyps and diverticulitis, onset during service or is otherwise related to an in-service injury, event, or disease, to specifically include exposure to herbicide agents and/or drinking contaminated water. The need for an additional examination is left to the discretion of the examiner. A complete rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. Regarding exposure to herbicide agents, the Board stresses that an opinion stating simply that a disease or disorder is not one of the diseases subject to presumptive service connection will not suffice. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.