Citation Nr: 21008051 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-27 607 DATE: February 11, 2021 ORDER Service connection for cutaneous neuroendocrine carcinoma, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran has cutaneous neuroendocrine carcinoma. 2. The Veteran was exposed to herbicide agents during service. 3. The evidence weighs against a finding that the Veteran’s cutaneous neuroendocrine carcinoma is related to service, to include his presumed exposure to herbicide agents in Vietnam. CONCLUSION OF LAW The criteria for an award of service connection for cutaneous neuroendocrine carcinoma have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from April 1957 to April 1984, to include service in Vietnam. His decorations include the Vietnam Service Medal and the Republic of Vietnam Gallantry Cross with Palm. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In his May 2017 substantive appeal, the Veteran indicated that he wanted to appear at a Board hearing. However, he later withdrew that request in April 2019. 38 C.F.R. § 20.704(e). This case was previously before the Board in April 2020 and October 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In its April 2020 remand, the Board directed the AOJ to undertake additional records development and to afford the Veteran a VA examination and/or opinion in connection with his claim. In its October 2020 remand, the Board found that the AOJ had substantially complied with its April 2020 directives regarding records development. It also found, however, that the AOJ had not substantially complied with its April 2020 remand directive regarding obtaining a VA examination and/or opinion, and directed the AOJ to obtain an addendum opinion. The AOJ obtained such an opinion in December 2020. The Board finds that the AOJ has substantially complied with the April 2020 and October 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection in General Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Pond v. West, 12 Vet. App. 341 (1999). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). For some “chronic diseases,” presumptive service connection is available. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § § 3.307, 3.309. With “chronic disease” shown as such in service (or within the presumptive period under § 3.307), 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 clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a “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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the “chronic disease” became manifest to a degree of 10 percent or more within the prescribed presumptive period, 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 C.F.R. § 3.307. The term “chronic disease,” whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. The Board must assess the credibility and weight of all the evidence to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Presumptive Service Connection Based on Exposure to Herbicide Agents VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though 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: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin’s disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson’s disease, multiple myeloma; non-Hodgkin’s lymphoma; 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); and 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). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection for cutaneous neuroendocrine carcinoma, to include as due to exposure to herbicide agents The Veteran contends that his cutaneous neuroendocrine carcinoma, also identified as Merkel cell carcinoma in the claims file, is due to exposure to herbicide agents during service. There is no material dispute that the Veteran has been diagnosed with Merkel cell carcinoma. The Board has also conceded that the Veteran was exposed to herbicide agents in service inasmuch as he served in Vietnam during the requisite period. Thus, the first and second elements of service connection have been met. See Davidson, supra. The key issue before the Board is whether there is a nexus, or link, between the Veteran’s Merkel cell carcinoma and his service. As an initial matter, the Board notes that Merkel cell carcinoma/cutaneous neuroendocrine carcinoma is not among the diseases listed at 38 C.F.R. § 3.309(e). Service connection on a presumptive basis is therefore not warranted. The Board has considered whether an award of service connection is warranted on a direct basis but finds that the preponderance of the evidence is against the claim. First, the Board notes that the Veteran’ service treatment records are silent as to any complaints, treatment, or diagnoses related to cancer or skin problems. Second, he was not diagnosed with Merkel cell carcinoma until many years after separation from service. Additionally, the Veteran has not contended that his cancer was incurred in service, but rather that it developed later as a result of exposure to herbicide agents during service. In support of his contention, the Veteran submitted several pieces of relevant evidence. The first is an opinion from his private treating provider, A.C., M.D., who stated in a January 2018 treatment record and an April 2019 letter that the Veteran’s exposure to herbicide agents was at least as likely as not to have caused his Merkel cell tumor. The second is an April 2014 medical article which indicates that exposure to herbicide agents appears to double the risk of invasive skin cancers. The article also notes that there might be an association between herbicide agents and the development of non-melanotic skin cancer, but that it needs to be studied on a larger scale with thousands of patients. Finally, the Veteran submitted a March 2004 Board decision relating to another Veteran and noted in his May 2017 substantive appeal that the Veteran in that case had the same type of cancer and was awarded service connection based on exposure to herbicide agents. The Board finds Dr. C.’s statements inadequate for an award of service connection. While he offered a positive nexus opinion, he provided no rationale to support his opinion. Regarding the April 2014 article, the Board notes that its finding are expressed in terms of possibility, rather than probability. The Board thus finds that the article is of limited probative value. The Board has also considered the March 2004 Board decision submitted by the Veteran but notes that Board decisions are not precedential and a decision as to one Veteran has no precedential weight with regard to a decision for a different Veteran. 38 C.F.R. § 20.1303. Board decisions must be made on the particular facts and applicable legal authority specific to the case before it. Id. The AOJ obtained a VA opinion regarding the possible link between the Veteran’s cancer and his exposure to herbicide agents in June 2020.The examiner stated that while exposure to herbicide agents was conceded and the Veteran had a confirmed diagnosis of Merkel cell carcinoma, a form of neuroendocrine cancer, it was less likely than not due to service or to exposure to herbicide agents in service. She noted that she reviewed the March 2004 Board decision regarding another Veteran and the April 2014 medical article. Regarding the medical article, she reasoned that the study looked only at 100 individuals, and that it clearly stated that there “may be an association between [herbicide agents] and nonmelanotic skin cancer,” but that it needed to be studied on a larger scale. She also noted that the study was not peer reviewed, not conducted on a large scale, and found no causation. She also noted that she researched Uptodate and Mayo Clinic to find risk factors for Merkel cell and neuroendocrine cancer, but that exposure to herbicide agents was not listed as a medically recognized risk factor. The AOJ sought another VA opinion for consideration of Dr. C.’s April 2019 opinion in December 2020. The examiner stated he reviewed Dr. C.’s letter, but noted that no literature studies were cited to support the opinion, and that the current, widely accepted, peer-reviewed literature had not associated Merkel cell carcinoma, a rare neuroendocrine tumor, with remote exposure to herbicide agents. He noted that the literature included a review of Uptodate, which is considered an excellent source. He further noted that the June 2020 VA opinion was correct, including the assessment of the article submitted by the Veteran, and stated that genetics and sun exposure, with a possible viral component, were considered the leading risk factors for developing the rare skin cancer. The Board finds the opinions of the June 2020 and December 2020 VA examiners to be the most probative evidence on the question of whether the Veteran’s Merkel cell carcinoma was incurred in or caused by service, to include as due to his conceded exposure to herbicide agents. Their opinions were based on review of the Veteran’s record including his reports, military records, treatment records, the April 2014 medical article, the opinions of Dr. C., and the March 2004 Board decision pertaining to another Veteran, with a thorough rationale provided for the opinions given. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Board has considered the Veteran’s assertions to the effect that his conceded exposure to herbicide agents caused his Merkel cell tumor. While sympathetic to his situation, the Board notes that the Veteran is not shown to have the specialized knowledge or training necessary to offer competent opinions with respect to the etiology of his cancer. See Jandreau, supra, at n.4 (holding that a layperson is competent to identify a simple condition such as a broken leg but not types of cancer); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Veteran is not competent to diagnose carcinoma (cancer) or relate it to service). As such, his assertions to that effect cannot be accorded any probative weight. In reaching these conclusions, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine does not apply. 38 U.S.C. § 5107(b). The appeal of this issue must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, Associate 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.