Citation Nr: 21007190 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 18-35 799 DATE: February 8, 2021 ORDER Service connection for skin cancer is denied. FINDINGS OF FACT 1. The Veteran had active service from March 1971 to March 1974, to include service in the Republic of Vietnam and exposure to herbicide is presumed. 2. The Veteran did not have skin cancer or other skin disorder in service; symptoms of skin cancer were not chronic in service, were not continuous since service, and were not shown to a compensable degree within one year of service. A current skin disorder, diagnosed as basal cell carcinoma, is not causally or etiologically related to service. CONCLUSION OF LAW Skin cancer was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In connection with this appeal, the Veteran testified at a May 2019 hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. 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 certain diseases associated with exposure to certain herbicide agents, even where there is no record of such diseases during service, if they manifest to a compensable degree at any time after service, in a veteran who, during active military, naval or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. §§ 3.307, 3.309. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. As relevant to the skin, chloracne is a disease associated with herbicide exposure, but skin cancer is not. 38 C.F.R. § 3.309(e). In addition to the laws and regulations cited above, certain chronic diseases, such as malignant tumors, although not manifested during service, may be service connected if manifest within certain prescribed periods following service. Malignant tumors, for instance, must be manifest to a degree of 10 percent within one year of service discharge. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran claims that service connection is warranted for skin cancer due to exposure to herbicide agents while in-country Vietnam. He also contends that skin cancer is due to sun exposure while performing his duties washing tanks and trucks in Vietnam. As the DD-214 shows service in Vietnam, exposure to herbicides is conceded. Turning first to direct service connection, the Veteran has been diagnosed with skin cancer. Specifically, VA treatment records reflect a diagnosis of basal cell carcinoma on his nose in August 2014. Therefore, a current diagnosis has been shown and the first element of service connection has been met. As to an in-service incurrence, a review of the service treatment records (STRs) reveals that the Veteran’s skin and lymphatics systems were found to be clinically normal at the January 1974 separation examination. Further, in an associated January 1974 Report of Medical History, he asserted that he did not have or had not had any tumors, growths, cysts, or cancers while in-service. Therefore, the second element of direct service connection has not been met, and the medical evidence does not support the claim on a direct basis. To the extent that the Veteran asserts a medical nexus between service and skin cancer, the Veteran submitted an October 2014 private opinion indicating that excess sun exposure in a person’s youth (teens and 20s) would usually, 2-3 decades later, cause significant risk for developing precancerous spots, squamous cell carcinoma, and melanoma. Other than a reference to age, the clinician did not establish a medical nexus between the Veteran’s service and skin cancer. A November 2014 clinician opined that it was impossible to say whether the Veteran’s skin cancer was due to service. In an examination and follow-up nexus statement, the dermatologist noted that skin cancer was related to sun exposure as a cumulative effect and that it was extremely common in the southern United States (Veteran has had a Florida address for many years) where people were frequently exposed to a lot of sun. In an August 2019 nexus statement from the same October 2014 physician, the clinician indicated that basal cell cancer was most likely caused by or a result of service. The clinician again reasoned that excessive sun exposure in the teens and 20s would usually 2-3 decades later cause significant risk for developing precancerous and cancerous skin lesions. But, again, other than the reference to the Veteran being in his teens and early 20s at the time he was in service, the clinician made no particular finding as to the Veteran’s situation. In a September 2019 VA Disability Benefit Questionnaire (DBQ) medical opinion, the examiner reviewed the medical literature, the VA and private medical opinion, and reconciled various pertinent factors, including the amount of time it took the Veteran’s basal cell carcinoma to develop, the role of sunburns in developing the disorder, and the Veteran’s lifetime sun exposure before, during, and after service. The examiner opined that the Veteran’s skin cancer was less likely than not casually or etiologically related to service, to include while stationed in Vietnam and Fort, Hood, Texas. She explained that though it was known that basal cell carcinoma could develop over time with sun UV light exposure, the Veteran had lived 38 years of his life outside of service exposed to the sun compared to 3 years in service. She noted that his post-service occupational history was a retired telephone lineman, suggesting that his post-service employment was outside. Additionally, the examiner indicated that a review of the Veteran’s post-service medical records was silent for any skin condition including actinic keratosis (precancerous spots) which were mentioned by the private clinician in his letter dated October 2014. She noted that actinic keratosis was a precedent of squamous cell skin cancer rather than basal cell carcinoma, of which the veteran was diagnosed. She indicated that basal cell carcinomas did not require a co-existing actinic keratosis lesion to develop. The examiner concluded that besides sun exposure as a risk factor in the development of basal cell carcinoma, the Veteran had other factors including age, he was 63 years old at time of basal cell carcinoma diagnosis, and being fair skinned. This evidence weighs against the claim. Based on the evidence the Board finds that the balance of evidence weighs against the claim. To that end, the Board places more probative value on the opinion of the September 2019 VA examiner than on the private medical opinion. First, the September 2019 examiner’s opinion addressed medical research that found that factors in the development of basal cell carcinoma besides sun exposure for the Veteran included age and being fair skinned. These findings suggest that the disorder was not related to service but rather had a later onset. Further, the September 2019 VA examiner’s opinion explained that though it was known that basal cell carcinoma could develop over time with sun UV light exposure, the Veteran had significantly more sun exposure post-service compared to 3 years in service, including a job out of doors. On the other hand, the private clinician did not address the impact, if any, on the Veteran’s many years living in Florida (apparently since discharge in 1974), or the fact that skin cancer developed 4 decades after discharge (rather than the 2-3 decades as referenced in the opinion), and the VA clinician’s finding that sun exposure has a cumulative effect and was very common in the southern states. Moreover, the private clinician did not discuss the Veteran’s particular situation or offer a rationale that was specific to the Veteran. Further, the STRs do not reflect that the Veteran’s MOS (telephone and switchboard repairman) suggested excessive sun exposure as identified by the private clinician nor does it show that he experienced sunburn while serving in Vietnam. Based on the above, the evidence does not support a finding that the Veteran’s skin cancer was a result of sun exposure during active duty on a direct basis. The nearly four decades between service separation and onset of the disorder, the impact of factors such as age and being fair skinned on the development of the disorder, and the consideration of pre- and post-service sun exposure all weigh against the claim. With regard to presumptive service connection based on herbicide exposure, the STRs establish that the Veteran served in Vietnam during the Vietnam War era; as such, exposure to herbicides is presumed. However, service connection is not, by regulation, warranted on a presumptive basis due to herbicide exposure for skin cancer, as skin cancer is not a chronic disease under 38 C.F.R. § 3.309(e). Therefore, the medical evidence does not support service connection for skin cancer on the basis of presumed herbicide exposure. As to presumptive service connection, malignant tumors are chronic diseases under 38 C.F.R. § 3.309 and presumptive service connection will be considered. However, no chronic disease or injury was shown in service. As noted above, the STRs do not reflect complaints of, treatment for, or a diagnosis of skin cancer or any symptoms reasonably attributed to a skin disorder. 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. The Veteran separated from service in March 1974. The medical evidence shows that symptoms of his current disorder developed almost 40 years after service. As such, the medical evidence does not support service connection on a “continuity of symptomatology” basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service, and presumptive service connection on a “manifest within one-year from separation” basis is also not supported by the evidence. Therefore, the medical evidence does not support service connection on a presumptive basis. The Board has considered the Veteran’s testimony and lay statements that skin cancer was 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 etiology due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records and clinical evidence. 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 appeal for service connection for skin cancer is 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 T. Grzeczkowicz 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.