Citation Nr: 21074896 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-42 674 DATE: December 16, 2021 ORDER Entitlement to service connection for skin cancer, to include as secondary to herbicide exposure is denied. Entitlement to service connection for a back disability, claimed as back fracture, is denied. REMANDED Entitlement to service connection for a lung disability claimed as low lung volume, to include as secondary to herbicide exposure is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that skin cancer began during active service, or is otherwise related to an in-service injury or disease, to include in-service exposure to herbicide. 2. The preponderance of the evidence is against finding that a back disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for skin cancer are not met. 38 U.S.C. §§ 1110, 1131, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 2. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to November 1968, to include service in the Republic of Vietnam from November 1967 to November 1968. He also had further National Guard and Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO)'s rating decisions issued in September 2017. The Board previously remanded the issues for further development in July 2020. The case has now been returned to the Board for appellate review. Service Connection Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a veteran must show: "(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 or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service "in the Republic of Vietnam" includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A (a). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes; Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); parkinsonism; bladder cancer; and hypothyroidism. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309 (e). "Early onset" peripheral neuropathy is defined as peripheral neuropathy that becomes manifest to a degree of 10 percent or more within one year after the Veteran's last in-service exposure to herbicide agents. 38 C.F.R. § 3.307 (a)(6)(ii). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a) (e.g., organic diseases of the nervous system and arthritis). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such 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 U.S.C. §§ 1101 (3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). Although entitlement to service connection on any of the presumptive bases noted above may not be established, a claimant is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). 1. Skin cancer The Veteran contends that he has had skin cancer due to exposure to herbicide agent. See March 2017 VA Form 21-526EZ. The medical evidence of record documents that the Veteran has had incidents of skin cancer and had undergone multiple surgeries to remove them. See May 2017 letter from Dr. R.C.; April 2019 VA treatment record. As the Veteran served in Vietnam during the Vietnam War era, he is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 ; 38 C.F.R. § 3.307 (a)(6)(iii). Otherwise, his service treatment records do not reflect any event related to skin cancer. Since skin cancer is not listed as a presumptive disease due to Agent Orange, a nexus between his skin cancer and service must be established. Here, the evidence preponderates against the claim. A December 2020 VA examiner opined that the Veteran's basal cell skin cancer was not related to his service, to include the in-service exposure to Agent Orange. The examiner explained that medical literature search was silent that Agent Orange causes basal cell skin cancer to develop. Further, the examiner stated that basal cell skin cancer is caused by sun exposure. Moreover, an April 2019 VA treatment record notes the Veteran's history of skin cancer with a comment "lots of outdoor activities" based on the Veteran's report that he used to hunt and fish. Finally, the Veteran's treating physician stated in his May 2017 letter that the Veteran was treated for skin cancers from 2000 to 2016 and during this period, he had approximately 10 skin cancers removed. The physician further stated that "his sun damage and other issues may be related to his extensive sun exposure during his military duty and possibly related to his exposure to Agent Orange." This is not a strong opinion. The medical evidence preponderates for finding that the Veteran's skin cancer was caused by sun exposure, not by exposure to Agent Orange. On this point, the Board finds that the May 2017 opinion by the private physician that his skin cancer is "possibly related to his exposure to Agent Orange" does not meet the evidentiary standard to conclude that the skin cancer is at least as likely as not caused by Agent Orange. In this case, the May 2017 opinion requires a further rationale to support the conclusion in light of the December 2020 examiner's finding that no medical literature has thus far established the nexus between skin cancer and exposure to Agent Orange. The medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board affords less probative weight for the May 2017 opinion on the nexus between skin cancers and Agent Orange exposure. Moreover, the theory that the Veteran's skin cancer is caused by sun exposure during his active duty that lasted for three years lacks sufficient evidentiary support. Here, the evidence of record preponderates against such a claim. In fact, the evidence shows that the Veteran was treated for skin cancer as early as 2000, after over three decades after separation from service, based on the May 2017 letter by the private physician; no other evidence points to an earlier onset of the condition. And the evidence indicates that the Veteran often engaged in and enjoyed outdoor recreational activities such as hunting and fishing over the years. On this point, the Board finds that the May 2017 opinion that "[i]t appears that much of his sun damage ... may be related to his extensive sun exposure during his military service" is speculative and does not meet the evidentiary standard to conclude the skin cancer is at least as likely as not caused by sun exposure during service. In this case, the May 2017 opinion requires a further rationale to support such a conclusion in light of the fact that the Veteran has had sun exposure for over 30 years during the course of his civilian life before the onset of his skin cancer. The May 2017 opinion does not explain why three years of sun exposure during active duty are at least as likely as not to cause skin cancer that occurred after 30 years since separation. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (2007). The Board affords less probative weight to the May 2017 opinion on the nexus between the Veteran's skin cancer and sun exposure while in service. Lastly, the May 2017 letter indicates that the Veteran had had a history of a soft tissue sarcoma prior to seeing the author of the letter who treated his skin cancers from 2000 to 2016. Although soft tissue sarcoma is currently listed as presumptive disease due to herbicide exposure, the evidence of record makes only passing reference to the incident in the May 2017 letter and does not show directly that the Veteran was diagnosed with and treated for such disability. The most recent October 2020 VA examination for cancers and scars does not reflect a finding that the Veteran currently has soft tissue sarcoma. Moreover, even though the AOJ requested, in a July 2020 letter, additional information and treatment records pertaining to the claimed disabilities on appeal as per the July 2020 remand, the Veteran has not responded to such request. If the Veteran indeed has had or is currently treated for soft tissue sarcoma, he is encouraged to submit a supplemental claim with medical evidence to support the current diagnosis and treatment for soft tissue sarcoma. For the foregoing reasons, the preponderance of the evidence is against the claim. The benefit-of-the-doubt doctrine is therefore not for application, and service connection for skin cancer is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Back disability, claimed as back fracture The Veteran contends that he has back fracture due to his service. See March 2017 VA Form 21-526EZ. The Veteran has a current diagnosis of chronic lumbar strain, as reflected in an October 2020 VA examination. A review of the Veteran's service treatment records, to include the November 1968 separation examination, do not reveal any event or complaint that could be associated with a back disability or fracture in the back. Post-service medical evidence shows that the Veteran did not have recurrent back pain or any back disability as of March 1979, as reflected in a Report of Medical History that he underwent for reappointment for the National Guard. A January 2014 VA treatment record documents the Veteran's report that he had lumbar spine surgery 30 years ago and he did not have back problems any longer. At the October 2020 VA examination, the Veteran also reported that he had lumbar spine disc surgery about 25 to 30 years ago. He also reported that he had "a gradual onset of low back issues starting in the service" and that he started "seeking treatment for back issues after service," though he could not recall when, only that it was "sometime after Kennedy was shot." The examiner confirmed the presence of scars from the surgery in the Veteran's back upon examination. Additionally, a March 2017 non-VA chest x ray reflected a finding of mild diminished height of a vertebral body at the thoracolumbar junction, consistent with fracture; this is the first instance of indication for "fracture" in the record. The evidence of record preponderates for finding that the Veteran did not fracture his back in service and the Veteran's back disability had onset sometime during the 1980's, not prior to March 1979. The absence of any evidence of back problems for approximately two decades after the Veteran's separation from active service in November 1968 until the lumbar spine surgery in the 1980's is one factor weighing against a finding that his current back disability existed continuously since during service or after service to the present. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue)." Here, the Board finds that the Veteran's report in the October 2020 examination that he has had back issues since service is less credible when viewed in the entirety of the evidence of record. Although the Veteran is competent to report onset of perceptible symptoms of back disability, his report of in-service onset of a back disability and back fracture is not at all corroborated with contemporaneous medical records, to include active duty service treatment records and post-service medical records from his National Guard period. He has not provided any detail, documentation, or release authorization for treatment records concerning the lumbar spine surgery that he underwent in the 1980's or the fracture indicated in the 2017 x ray. There is no indication that any injury occurred during National Guard or Reserve duty, which concluded in 1988. In addition, the preponderance of the competent, probative opinion on whether there is a relationship between the Veteran's current back disability and service weighs against the claim. The October 2020 VA examiner provided a negative nexus opinion for the back disability. The rationale was that the examiner did not find any event, illness, or injury in service that is related to back issues. The examiner further stated that available treatment records are silent for any chronic back issues, except for the report that he had a history of back surgery in the 1980's. These finding made by the examiner in support of the etiology opinion is consistent with the fact found in the evidence as noted above. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). The Board affords probative weight to this medical opinion. Any lay statement made by the Veteran concerning the etiology of his back disability does not afford probative weight. Consideration of a nexus between service and a disability that led to a lumbar spine disc surgery requires specialized knowledge involving internal medical process of the body systems that is not readily observable to lay person. The Veteran has not indicated that he has such medical expertise. His opinion on the question of nexus is therefore not competent evidence in this instance. No medical opinion in support of the Veteran's claim is of record. For the foregoing reasons, the preponderance of the evidence is against the claim. The benefit-of-the-doubt doctrine is therefore not for application, and service connection for back disability is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Service connection for a lung disability claimed as low lung volume An addendum opinion is required in order to adjudicate his claim for a lung disability. The Veteran contends that his low lung volume is related to his exposure to herbicides in service. See March 2017 VA Form 21-526EZ. An October 2020 VA examination reports a normal pulmonary function test (PFT) result and assessed that the Veteran does not have a current lung disability. It also documents the Veteran's report that he had a chronic obstructive pulmonary disease (COPD)-like condition with a current symptom of dyspnea with exertion. Notably, a March 2017 non-VA chest x ray shows low lung volumes with bronchovascular crowding with a note from a physician commenting that the x ray showed a poor inspiratory effort. An April 2109 VA treatment record also documents the Veteran's report of diagnosis of low level lung capacity. The clinician noted that the FEV1/FVC ratio was 68 percent and the Veteran likely had mild COPD. The Board finds that the Veteran has had a post-service diagnosis or assessment of low lung volume and COPD during the appeal period. Accordingly, although the current finding of no lung diagnosis in the October 2020 VA examination is apparently supported by the most current PFT result, a review of the medical evidence of record indicates that the Veteran has had a diagnosis of COPD and low lung volume. Therefore, a medical opinion concerning nexus between the current lung disability and in-service herbicide exposure must be obtained. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's lung disability is at least as likely as not related to the presumed in-service exposure to herbicide. The examiner must review the entire claims file, to include this Board remand. All opinions must accompany sufficient rationales. 2. After the development requested has been completed, the examination reports should be reviewed to ensure that they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, corrective procedures should be implemented. 3. Readjudicate the claim. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor 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.