Citation Nr: 21011370 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 19-25 751 DATE: March 1, 2021 ORDER Entitlement to service connection for a skin disability, to include basal and squamous cell carcinoma, is denied. FINDING OF FACT The preponderance of the evidence is against finding that a skin disability began during active service, or is otherwise related to an in-service injury, event, or disease, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for a skin disability have not been satisfied. 38 U.S.C. §§ 1110, 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 in the United States Marine Corps from June 1966 to June 1968, to include service in the Republic of Vietnam. His awards and decorations include a Bronze Star Medal with “V” Device. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the August 2019 substantive appeal, the Veteran requested a hearing before the Board. However, prior to a hearing being held, the Veteran cancelled his request. Therefore, the Veteran’s hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e). The Veteran contends that he has squamous and basal cell carcinoma that was caused by his active duty service. See May 2018 VA 21-526b Veteran Supplemental Claim. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). By virtue of his service in Vietnam, the Veteran is presumed to have been exposed to herbicide agents such as Agent Orange. 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases are presumed by VA to be related to exposure to herbicide agents. 38 C.F.R. § 3.309(e). Basal cell and squamous cell carcinoma are not specifically listed as diseases presumed related to exposure. The Veteran has a current skin disability. At his May 2018 VA examination, he was diagnosed with skin cancer with a 2008 diagnosis date. Thus, the remaining question is whether the current skin disability is related to service. The Veteran presented for a VA examination in May 2018, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner indicated the Veteran had been followed by dermatology staff for treatment of skin cancer since 2008 including 2008 basal carcinoma of the back, 2011 squamous cell cancer of left calf, 2016 basal cell cancer of left arm, and 2016 squamous cell cancer of right forearm. He had residual scars from surgical removal of lesions. The examiner opined that the Veteran’s skin cancer, manifesting as basal and squamous cell cancer, was less likely than not related to Agent Orange exposure during service. In support of this conclusion, the examiner explained that medical literature indicates that non-melanoma skin cancers, including basal cell and squamous cell cancer are caused by exposures to sun light. The examiner noted that having light skin that sunburns easily leads to a person likely getting skin cancer. Higher risk categories for skin cancer includes being a male, over 40 years old, and where there is a family history of having had the disease. Individuals are more likely to get skin cancer if they are exposed often to strong X-rays, certain chemicals (such as arsenic, coal tar, and creosote), and radioactive substances (such as radium). The examiner noted that there was no evidence currently showing that the Veteran’s skin cancer was related to or aggravated by previous exposures to Agent Orange many years ago. The examiner also noted that any association between Agent Orange and skin cancer is currently controversial and has not been proven to be definitive. Therefore, he explained, skin cancer is not classified as a presumptive condition. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. Upon review of the evidence of record, the Board finds that the most probative evidence is against a finding that service connection for a skin disability due to active duty service, to include exposure to herbicide agents, is warranted. Presumptive provisions under 38 C.F.R. §§ 3.307, 3.309 are not applicable in this case as skin cancer, to include basal cell and squamous cell carcinoma, is not included in the list of presumptive diseases. Additionally, the May 2018 VA examiner reviewed the Veteran’s claim and found that it was less likely than not that there was a direct connection between his skin disability and any exposure to herbicide agents. The Board also finds that the criteria for service connection on a direct basis are not met. Service treatment records show no complaints, diagnosis, or treatment related to a skin disability. During the June 1968 separation examination, evaluation of the skin was normal. In a corresponding report of medical history, the Veteran specifically denied having had skin diseases, or tumor, growth, cyst, or cancer. Therefore, in-service onset is not shown. 38 C.F.R. § 3.303. A skin disability is not shown by medical evidence until many years after the Veteran’s separation from service. Of note, in an August 1968 VA examination, held less than two months after the Veteran separated from service, examination of the Veteran’s skin revealed normal findings. As the carcinoma did not manifest to a compensable degree in service or within a year of service, and continuity of symptomatology related to carcinoma is not shown, in-service incurrence of a chronic disease (malignant tumor) cannot be presumed. 38 C.F.R. § 3.309(a). The Board has considered the Veteran’s statements, to include his assertions that the symptoms of his skin disability is related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., sunburn; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. (Continue to Next Page) For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. C.B. Iwanowski Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.