Citation Nr: 21075453 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-34 969A DATE: December 20, 2021 ORDER Service connection for a skin disability, claimed as basal cell carcinoma is denied. FINDING OF FACT A current skin disability, claimed as basal cell carcinoma, did not have its onset in service, has not been chronic or continuous since service separation, and is not due to or the result of an in-service disease, injury, or other incident of service, to include radiation exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin disability, claimed as basal cell carcinoma, have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from December 1967 to December 1970. This appeal initially came to the Board of Veterans' Appeals (Board) from a May 2013 rating decision. In November 2019, the Board denied the Veteran's claims. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In March 2021, the Court vacated the part of the Board decision concerning the skin condition and remanded it for action consistent with the directives of a Court Memorandum Decision for Readjudication. The Veteran did not appeal the decision concerning compensation under 38 U.S.C. § 1151 for a kidney disability or the decision concerning new and material evidence to reopen a claim for service connection for a back disability. This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). In May 2017, the Veteran testified on these issues at a Travel Board hearing before the undersigned, and a transcript of that hearing is of record. With respect to the skin cancer due to radiation exposure claim denial, the Court instructed the Board to address the duty to assist by providing a VA examination under McLendon and instructed the Board to discuss potentially favorable evidence in the record titled "Nuclear Duty Position Screening Evaluation." 1. Service connection for a skin disability, claimed as basal cell carcinoma The Veteran seeks service connection for a skin disability, claimed as basil cell carcinoma. He asserts he incurred such a disability as a result of exposure to ionizing radiation during service, and service connection is therefore warranted. Specifically, the Veteran has stated he served as a guard at a nuclear missile site in Germany during service and was exposed to radiation at that location. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a Veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. As an initial matter, the service treatment records are negative for any diagnosis of or treatment for a skin disability, to include basil cell carcinoma. Likewise, the August 1970 service separation examination noted no abnormalities of the skin. VA treatment records indicate diagnosis and removal of a basil cell carcinoma nodule in September 2010, without complications. He continues to be followed periodically by VA dermatology to monitor any possible recurrences. Thus, based on the above evidence, which shows onset of his basil cell carcinoma in 2010, many years after service, and an absence of any in-service diseases or injuries of the skin, the Board must conclude that a current skin disability was not incurred in service, and has not been chronic or continuous since service separation. This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). At his May 2017 Board hearing, the Veteran reported he was first diagnosed with skin cancer by the VA in approximately 2005. He also stated he had a skin cancer lesion removed at a private facility in the mid-1980's. He asserted that during service he was assigned guard duty at a nuclear facility in Germany and was thus exposed to radiation. Nevertheless, accepting as credible the Veteran's testimony of removal of a skin cancer lesion in the mid-1980's, such a diagnosis was still rendered more than 10 years after service separation, and thus suggests against onset during service. Id. In the Veteran's appeal to the Court in March 2021, he contends that the Board failed its statutory duty to assist pursuant to 38 U.S.C. § 5103A and the implementing regulation 38 C.F.R. § 3.139. Specifically, he contends the Board failed to consider whether the circumstances mandated the VA provide a medical examination or opinion regarding Appellant's claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) which set forth a four-prong test for determining when the Veterans Administration is required to provide a medical examination where there is: (1) Competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. The Veteran has a diagnosis of skin cancer, which satisfies the first prong under McLendon. The Veteran claims he was exposed to radiation in service, but has not carried his burden of establishing that, in fact, he was exposed to ionizing radiation during service. The VA met its duty to assist the Veteran with his burden of proof by writing a letter to the U.S. Army Dosimetry Center and being told there was no record of the Veteran's having been exposed to ionizing radiation during service. The Veteran next argues that because his work at the missile site was top secret, his dosimetry records may also be classified. At his May 2017 Board hearing, the Veteran claimed he was exposed to radiation as a guard at a nuclear weapons storage site in Bamberg Germany in the late 1960s, but his form of cancer is not one listed under 38 CFR 3.309(d)(2) as a disease specific to radiation-exposed Veterans. The court also instructed the Board to discuss the potentially positive evidence in the record titled "Nuclear Duty Position Screening Evaluation." Having examined the file and later versions of the form, the Board concludes that the form in this case was used to assess the suitability of the Veteran to be stationed at a nuclear site. The Veteran met the qualifications. On later versions of the form reasons for disqualification include alcohol abuse, drug abuse, negligence/delinquency in duty performance, court-martials/civilian convictions, poor attitude/lack of motivation and other. This evidence shows only that the Veteran was not disqualified from working at a nuclear site. The Veteran's having worked at the claimed nuclear weapons storage site as a guard is not disputed. Based on the foregoing, the Board concludes that there is no duty to provide the Veteran with a VA examination under McLendon, because McLendon's second prong analysis is not satisfied. The preponderance of the evidence does not support the Veteran's contention that he was exposed to ionizing radiation while in service. Therefore, the duty to assist by providing a VA medical examination under McLendon is not triggered. And while the "Nuclear Duty Position Screening Evaluation" supports the Veteran's having qualified to work at a nuclear weapons site, his having worked as a guard at said site is not contested. Working as a guard at a nuclear weapons site is not proof of having been exposed to ionizing radiation in service. Additionally, no competent evidence has been presented of a nexus between any disease, injury, or incident of service and any current skin disability. In a May 2017 letter, the U.S. Army Dosimetry Center stated it could not confirm that the Veteran had any ionizing radiation exposure during service. Likewise, no private or VA examiner has suggested a nexus between any disease, injury, or other incident of service, and a current skin disability, to include basil cell carcinoma. The Veteran himself asserts his basil cell carcinoma is the result of radiation exposure in service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau, 492 F.3d at 1372. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id. However, dermatological disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. The Veteran is also not competent to testify regarding exposure to radiation in service, as such exposure is generally not subject to lay observations, and he has pointed to no specific evidence confirming such exposure. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for a skin disability, claimed as basil cell carcinoma, as such a disability did not have its onset in service, has not been chronic or continuous since service separation, and is not due to or the result of an in-service disease, injury, or other incident of service, to include radiation exposure. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1Vet. App. 49, 5 5-57 (1991). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Black, Jeffrey W. 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.