Citation Nr: 21008702 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 18-51 662 DATE: February 17, 2021 ORDER Service connection for residuals of skin cancer, diagnosed as squamous cell carcinoma of the left cheek and basal cell carcinoma of the right nasolabial crease and left upper lip, is granted.   FINDING OF FACT The Veteran’s facial scars are residuals of skin cancer, diagnosed as squamous cell carcinoma of the left cheek and basal cell carcinoma of the right nasolabial crease and left upper lip, related to in-service exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for residuals of skin cancer, diagnosed as squamous cell carcinoma of the left cheek and basal cell carcinoma of the right nasolabial crease and left upper lip, are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to December 1969. The case is on appeal from an April 2018 rating decision. In February 2021, the Veteran testified at a Board hearing. The Veteran submitted additional evidence following the hearing; waiver of initial RO consideration is presumed. Service connection for residuals of skin cancer, to include squamous cell carcinoma of the left cheek and basal cell carcinoma of the right nasolabial crease and left upper lip. The claim has been broadened as one of service connection for skin cancer, to include squamous cell carcinoma of the left cheek and basal cell carcinoma of the right nasolabial crease and left upper lip, to comport with the evidence and Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).   Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). 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 served in the Republic of Vietnam during the Vietnam War period. 38 C.F.R. § 3.307. For these Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Squamous cell carcinoma and basal cell carcinoma are not diseases are not on the list of diseases subject to presumptive service connection based on in-service herbicide exposure under 38 C.F.R. § 3.307(a)(6)(iii), 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Analysis The Veteran contends that his skin cancer is related to service, to include as a result of exposure to herbicides, such as Agent Orange, during service in Vietnam. The Regional Office (RO) determined that the Veteran served in Vietnam. See October 2018 Statement of the Case. In that respect, the Board notes that in addition to the Veteran’s period of active duty during the Vietnam era, his military specialty was Military Police and his awards include a Vietnam Campaign Medal and a Vietnam Service Medal. See DD Form 214. Hence, exposure to herbicides during service is presumed. See 38 C.F.R. § 3.307(a)(6)(iii). The Veteran’s service treatment records (STRs) reflect a rash on the shoulders during service in June 1969, diagnosed at that time as allergic urticaria. In addition, the March 2018 VA examination report reflects the Veteran’s history of removal of squamous cell carcinoma of the left cheek in July 2017, as well as removal of basal cell carcinoma on the right nasolabial crease and left upper lip in 2014. See also March 2018 VA treatment records. Further, in June 2019, the Veteran’s primary care physician stated that the Veteran’s history of squamous cell and basal cell carcinoma, resected, was at least as likely as not a result of exposure to Agent Orange. As to the nexus element, the March 2018 VA examiner opined that there was insufficient evidence in medical literature of an association between skin cancer and herbicide exposure. However, in December 2017, a private doctor submitted medical articles reflecting studies show that the rate of non-melanoma invasive skin cancer in Veterans exposed to Agent Orange was about twice as high as the average rate expected in men of a similar age, increased to 73 percent for Veteran’s who actively sprayed Agent Orange. See February 2021 Correspondence. Although limitations in the studies were noted, the findings were determined to strengthen the previously reported association between herbicide exposure and development of non-melanoma invasive skin cancer. In addition, and relevant to the Veteran in this case, individuals with light skin or eye color were noted to have a higher risk of developing skin cancer. See October 1967 service entrance examination report. The doctor concluded that the Veteran’s skin cancer was more than likely related to exposure to Agent Orange. Bolstering that opinion is a May 2020 opinion from a private dermatologist stating that dermatology literature reflects a known association between non-melanoma skin cancers and Agent Orange exposure. The Board finds that the private opinions are probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The private opinions confirm the diagnosis and consistently relate the Veteran’s skin cancer on his face to herbicide exposure during service. Overall, the opinions sufficiently bring the evidence as to nexus to at least equipoise. Upon review of the record, when resolving reasonable doubt in the Veteran’s favor, the Board finds that his current disability is related to service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for squamous cell carcinoma of the left cheek and basal cell carcinoma of the right nasolabial crease and left upper lip is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. 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.