Citation Nr: 21011973 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-56 687 DATE: March 3, 2021 ORDER Service connection for skin cancer, to include basal cell carcinoma, is denied. REMANDED Service connection for a bilateral knee disorder, to include as secondary to a bilateral foot/toe disorder. Service connection for a bilateral hand disorder.   FINDING OF FACT The Veteran’s skin cancer did not have its onset in service or within one year of service, and is not related to service, to include exposure to contaminated water at Camp Lejeune, herbicide agents, or the sun. CONCLUSION OF LAW The criteria for service connection for skin cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 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 November 1965 to November 1967. The case is on appeal from a February 2015 rating decision. In May 2019, the Veteran testified at a Board hearing. In October 2020, the Board remanded six issues for additional development. While the case was in remand status, in a July 2020 rating decision, the RO granted service connection for status post orchiectomy for testicular cancer with erectile dysfunction, dermatophytosis/tinea pedis of the bilateral feet, and a bilateral foot impairment. The RO also granted entitlement to special monthly compensation. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for skin cancer. 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)). Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For veterans who are presumed to have been exposed to contaminants in the water supply while serving at Camp Lejeune for no less than 30 days from August 1, 1953, to December 31, 1987, VA has established a presumption of service connection for certain diseases. 38 C.F.R. § 3.307(a)(7), 3.309(f). If the Veteran meets the requirements for a presumption of herbicide exposure under 38 C.F.R. § 3.307, several diseases are presumed to be related to herbicide exposure. 38 C.F.R. § 3.309(e). VA regulations provide that if a Veteran was exposed to herbicides during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309(e). A Veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to herbicides. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Where a presumption does not exist, VA is to consider whether service connection is warranted on a non-presumptive basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). In addition, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran is seeking service connection for skin cancer. At the May 2019 Board hearing, the Veteran asserted his skin cancer is related to sun exposure during service, specifically during his service in Vietnam. The Veteran alternatively contends that his skin cancer is related to Agent Orange exposure during service in the Republic of Vietnam, or exposure to contaminated water during his service at Camp Lejeune. Initially, the current disability requirement is established for the skin cancer claim. A January 2020 VA examination reflects a diagnosis basal cell carcinoma. Presumptive Theories As an initial matter, the Board will address whether presumptive service connection is warranted for basal cell carcinoma as related to exposure to contaminated water at Camp Lejeune, exposure to herbicide agents, and skin cancer as a chronic disease. Concerning contaminated water at Camp Lejeune, the Veteran’s service personnel records (SPRs) confirm he was stationed at Camp Lejeune from between April and May 1969. Thus, the Veteran served on active duty during the periods known to be associated with presumed exposure to contaminated water. As a result, exposure to contaminants at Camp Lejeune is presumed. However, neither basal cell carcinoma nor skin cancer, are included as diseases associated with such exposure under 38 C.F.R. § 3.309(f) for the purposes of presumptive service connection. As such, service connection cannot be established on a presumptive basis based on exposure to contaminated water at Camp Lejeune. Regarding exposure to herbicide agents, including Agent Orange, the Veteran served in the Vietnam Republic of Vietnam from 1966 to 1967. As such, the Veteran is presumed to have been exposed to herbicide agents during that time. 38 C.F.R. § 3.307(a)(6)(iii). However, the Board notes neither skin cancer or basal cell carcinoma is a listed disease subject to presumptive service connection based on herbicide exposure under 38 C.F.R. § 3.309(e), and as such, service connection is not warranted on this basis. Presumptive service connection may also be established for certain chronic diseases, including malignant tumors, under 38 C.F.R. § 3.303(b) or 3.309(a). The Veteran’s basal cell carcinoma was not symptomatic or diagnosed in service or within one year from separation from service. The evidence of record shows that the Veteran was diagnosed with basal cell carcinoma in April 2009, approximately four decades after his separation from active duty. See October 2019 VA opinion; see also April 2009 private treatment records. Further, the record does not contain evidence indicative of a manifestation during service or a continuity of any type of symptomology since service. Consequently, presumptive service connection under 38 C.F.R. § 3.303(b) or 3.309(a) is not warranted. Direct Theory Having established presumptive service connection is not warranted, the Board’s analysis will now address “direct” service connection. That is, whether the Veteran’s basal cell carcinoma is nevertheless related to service, specifically presumed exposure to contaminated water at Camp Lejeune; exposure to herbicide agents, including Agent Orange; or exposure to the sun. The Board finds the evidence of record establishes the occurrence of an in-service injury or event as it concerns the Veteran’s exposure to contaminated water at Camp Lejeune, herbicide agents, and the sun. As noted above, the Veteran’s military personnel records reflect that the Veteran was stationed at Camp Lejeune during the applicable period; thus, exposure to contaminants has been presumed. The Veteran’s exposure to herbicide agents is also presumed, as he served in the Republic of Vietnam during the applicable period. Concerning sun exposure, the Veteran asserts that during his service in the Republic of Vietnam, he spent a significant amount of time outdoors without sun protection and experienced sunburns. At the May 2019 Board hearing, the Veteran testified that while deployed to the Republic of Vietnam, his duties included going on patrol in the jungle, and sitting in and digging foxholes. In this case, the Board finds that the Veteran is competent and credible to report what he experienced while in the military. Moreover, his testimony is consistent with the circumstances of his service. The Veteran’s service records reflect a specialty of “machine gunner,” and that he served in the Republic of Vietnam from 1966 to 1967, including participation in Operation Prairie and Operation Cormorant. As such, the Board finds that the Veteran experienced exposure to the sun, and sunburn during service, particularly when reasonable doubt is resolved in his favor. Thus, the determinative issue for the Board is whether a nexus, or causal link, exists between the Veteran’s active military service and his basal cell carcinoma. Concerning this issue, the evidence of record includes an October 2016 opinion provided by a VA Camp Lejeune contaminated water subject matter expert and an opinion from an examiner who provided an examination in January 2020. The October 2016 opinion addressed the relationship between the Veteran’s exposure to contaminants at Camp Lejeune and was authored by a Camp Lejeune contaminated water subject matter expert, who is a physician with a master’s degree in public health. The examiner indicated the claims file was reviewed and concluded that it is less likely than not that the Veteran’s basal cell carcinoma is related to contaminated water at Camp Lejeune. The subject matter expert explained that the single most important risk factor for the development of both basal cell carcinoma and squamous cell carcinoma, the most common types of skin cancers, is UV light exposure, with sunlight being the most common source. He noted other known risk factors in adults include light-colored skin, older age, male gender, exposure to chemicals (in particular exposure to large amounts of arsenic increases the risk of skin cancer), exposure to radiation, previous skin cancer diagnosis, certain long-term or severe skin problems, psoriasis treatment, and a weakened immune system (either from a disease process or a medication used to treat a medical condition, e.g. steroids). The subject matter expert also noted the Centers for Disease Control and Prevention (CDC) also identifies having blue or green eyes as a risk factor for developing skin cancer. The subject matter expert cited to several studies indicating the absence of a relationship between chemicals associated with contaminated water at Camp Lejeune and skin cancer. In particular, the subject matter expert noted a study performed by the U.S. Environmental Protection Agency which found no data indicating an increased incidence of basal cell carcinoma and exposure to chemicals associated with contaminated water at Camp Lejeune. He also cited to an Institute of Medicine literature review and a study published by the National Research Council of the National Academies reflecting that there was inadequate/insufficient evidence to determine whether an association exists between exposure to solvents and melanoma or non-melanoma skin cancer. The subject matter expert also commented that the Agency for Toxic Substances and Disease Registry does not mention skin cancers as having been reported in association with the solvents at issue. Based on the above, the subject matter expert concluded that due to absence of solvent exposure being identified as a risk factor for the development of basal cell carcinoma and the absence of any findings of an increased incidence of basal cell carcinoma developing in individuals exposed to the water at Camp Lejeune, and the Veteran having several known risk factors for basal cell carcinoma i.e., his gender, his age, his being Caucasian, and his green eyes, it is his opinion, that the Veteran’s basal cell carcinoma is not due to or related to his exposure to contaminated water at Camp Lejeune. As the October 2016 opinion only addressed the Veteran’s exposure to contaminated water at Camp Lejeune, the Board remanded the claim in October 2019. The Veteran subsequently underwent a VA examination in January 2020. The examiner concluded that it is less likely than not that the Veteran’s basal cell carcinoma had its onset in or is related to exposure to herbicide agents, contaminated water at Camp Lejeune, or the sun. The examiner explained generally skin cancer has its origin during childhood and teenage years, and then manifests itself during the fifties, sixties, or later. In the case of the Veteran, the examiner noted the Veteran has skin type I, which has the highest risk for skin cancer, and that he reported extensive sun exposure during childhood and his teenage years during the 1950s and 1960s, without any sun protection, as it did not exist at that time. She also cited to a medical journal literature review which concluded that high levels of sun exposure during childhood, as opposed older ages, is associated with an increased risk of developing melanoma. Thus, the examiner attributed the Veteran’s basal cell carcinoma to childhood sun exposure and determined that it is less likely than not that the Veteran’s basal cell carcinoma had its onset in or is related to exposure to herbicide agents, contaminated water at Camp Lejeune, or the sun. The Board acknowledges the Veteran’s contentions that his basal cell carcinoma is related to exposure to contaminated water at Camp Lejeune; exposure to herbicide agents, including Agent Orange; and exposure to the sun. However, the Veteran’s statements may not be used to establish a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As such, his opinion lacks probative value, and an opinion by a qualified medical expert is required to decide the claim. Consequently, the Board gives more probative weight to the VA opinions described above. The Board finds the opinions, cumulatively, to be persuasive, as they rely on expert knowledge and the Veteran’s medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinions support that the Veteran’s basal cell carcinoma is unrelated to his exposure to contaminated water at Camp Lejeune, herbicide agents, and the sun during service. In this regard, both opinions are consistent with one another in that they explain that the more likely etiology for the Veteran’s basal cell carcinoma is sun exposure, with the January 2020 opinion explaining further that the Veteran’s basal cell carcinoma was due to childhood sun exposure. In addition, there is no similar medical opinion of record weighing in favor of service connection. In reaching the conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, under the presumptive and direct theories of service connection, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is not warranted for skin cancer. REASONS FOR REMAND 1. Service connection for a bilateral knee disorder, to include as secondary to a bilateral foot/toe disorder. The Veteran is seeking service connection for a bilateral knee disorder. At the May 2019 Board hearing, he asserted that he has a bilateral knee condition that is due to the physical rigors of his duties. He also contends that his bilateral knee condition is secondary to his service-connected bilateral foot condition due to an altered gait. He asserts further that his gait has been altered since developing a severe ingrown toenail condition during his service in the Republic of Vietnam. The Veteran underwent a VA examination concerning this claim in January 2020. The examiner diagnosed a meniscal tear and osteoarthritis of the right knee. The examiner opined that it is less likely than not that the Veteran’s knee condition had its onset during service or related to service because there is no indication of a knee condition noted in the Veteran’s service treatment records. Concerning whether the Veteran’s knee condition is secondary to his service-connected foot condition, the examiner provided a negative etiology opinion concerning whether the Veteran’s knee condition is related to his service connected foot condition stating that the Veteran underwent right knee surgery 30 years after service and there is no evidence of an altered gait from 1967 until the knee surgery. In July 2020, an addendum opinion was obtained concerning secondary aggravation. The examiner concluded that it is less likely than not that the Veteran’s knee condition is aggravated by the Veteran’s service-connected foot condition as the Veteran’s foot condition is limited to a skin condition that would not have major impact on his knees. The Board finds the January 2020 VA opinion and the July 2020 VA opinion are not entirely sufficient to decide the claim. In this regard, clarification regarding the diagnosis of the Veteran’s knee condition is needed as the Veteran’s VA treatment records indicate he has osteoarthritis of both knees, while the January 2020 VA examination only notes conditions of the right knee. In addition, although noting the Veteran underwent right knee surgery 30 years after service, the examiner who provided the January 2020 opinion did not explain why this this makes it less likely that the Veteran’s knee condition is secondary to his service-connected foot condition. The examiner also relied on the absence of evidence of an altered gait between 1967 and 2000. As such, she did not consider the Veteran’s contention that his altered gait began during service. Further, the examiner who provided the July 2020 opinion only considered whether the Veteran’s knee condition is secondary to the Veteran’s service-connected skin conditions of the feet. However, the Veteran is also service connected for a foot condition manifested by pain. Accordingly, a new examination and opinion are warranted on remand. 2. Service connection for a bilateral hand disorder. The Veteran contends he has a condition of the hands that are a result of his service. At the May 2019 Board hearing, the Veteran stated that his hand condition is related to his exposure to herbicide agents and contaminated water at Camp Lejeune. He also asserted that his hand condition is due to the physical rigors of service in the Republic of Vietnam. Board Hr’g. Tr. at 11. The Veteran underwent a VA examination in January 2020. At that time, the examiner reported a diagnosis of ulnar neuropathy. She concluded that it is less likely than not that the Veteran’s hand condition is related to service, to include his presumed exposure to herbicide agents and contaminated water at Camp Lejeune. She explained that there is no known connection between ulnar neuropathy and any chemical exposures. The Board finds the January 2020 VA opinion is not entirely adequate to decide the claim. Although the examiner addressed whether the Veteran’s hand condition was related to his presumed in-service exposure to herbicide agents and contaminated water at Camp Lejeune, she did not address the Veteran’s contention that his hand condition is related to the physical rigors of his service in the Republic of Vietnam. Accordingly, a new examination and opinion are warranted on remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or telehealth interview, record review, etc., if an in-person examination is not feasible) by a qualified medical professional for an opinion to determine the nature and etiology of any knee condition. The entire claims file should be reviewed by the examiner. The examiner should identify any current knee conditions. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any knee condition had its onset during service, or is otherwise causally related to service, to include the physical rigors of service. If arthritis is diagnosed, the examiner should also provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that it had its onset within one year of service. If not directly related to service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s knee condition is caused or aggravated by his service-connected foot condition, to include his foot condition manifested by pain. The examiner should consider the Veteran’s reports of his foot condition causing an altered gait beginning during his military service. “Aggravation” is an increase in severity beyond the natural progress of the disease. The examiner should provide rationale for all opinions expressed, including by citing to the record. 2. Also, schedule the Veteran for a VA examination (or telehealth interview, record review, etc., if an in-person examination is not feasible) by a qualified medical professional for an opinion to determine the nature and etiology of any hand condition. The entire claims file should be reviewed by the examiner. The examiner should identify any current hand conditions. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any hand condition had its onset during service, or is otherwise causally related to service, to include the physical rigors of service, and presumed exposure to herbicide agents and contaminated water at Camp Lejeune. The examiner should provide rationale for all opinions expressed, including by citing to the record. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Gray, 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.