Citation Nr: 21013319 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 18-44 012 DATE: March 9, 2021 ORDER Entitlement to service connection for a skin disability is denied. FINDING OF FACT The Veteran’s skin disability did not originate in service, was not manifest within one year of service, and is not otherwise etiologically related to the Veteran’s active service, to include in-service sun and asbestos exposure. CONCLUSION OF LAW The criteria for service connection for a skin disability have not been met. 38 U.S.C. §§ 1110, 1116, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1953 to August 1957. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board denied the Veteran’s claim of entitlement to service connection for a skin disability, to include as due to in-service sun exposure. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC). In an April 2020 Joint Motion for Remand (JMR), the CAVC vacated the Board’s decision, finding that remand was warranted because the Board failed to address the Veteran’s theory of entitlement to service connection for a skin disability based on in-service exposure to asbestos, including whether a VA examination was warranted based on this theory of entitlement. The Board conceded in-service asbestos exposure and remanded this issue in August 2020 for development consistent with the terms of the JMR. Following the requested development regarding additional medical treatment records, the Veteran was afforded a VA examination in October 2020. However, in December 2020, the Board remanded the claim again, finding that the October 2020 VA opinion was inadequate because, while noting that the Veteran was service-connected for asbestosis, the examiner failed to address it in relationship to the Veteran’s skin disability or long history of skin problems. Accordingly, the Board requested an addendum opinion, specifically addressing the relationship between the Veteran’s skin disability and his in-service asbestos exposure. In December 2020, the requested VA addendum opinion was obtained, and the RO issued a Supplemental Statement of the Case (SSOC) in January 2021. Review of the completed development reveals that, at the very least, substantial compliance with the Board’s previous remand directives was obtained. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases are subject to presumptive service connection which develop to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as “chronic” by VA. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for a skin disability is denied. The Veteran asserts that his skin disability is related to his active service, to include sun and asbestos exposure. Although asbestos exposure has been conceded in this case, there is no VA regulation that allows service connection on a presumptive basis for disorders resulting from exposure to asbestos; however, service connection based on exposure may be established if a current disability is shown by the evidence to be related to the exposure during service. 38 C.F.R. §§ 3.307, 3.309. Service treatment records, to include his August 1957 separation examination, are silent for any complaints, treatment, or diagnosis related to any skin disorders or skin related symptoms. His August 1957 separation examination report indicated a normal skin evaluation. The Veteran’s post-service treatment records reveal that, as early as October 2000, he underwent several excisions of skin lesions that were assessed as seborrheic keratosis. Additionally, since May 2006, the Veteran has had biopsies for skin lesions on his chest and right ear, which were assessed as probable squamous cell carcinoma and basal cell carcinoma; in February 2015, the Veteran received a diagnosis of right helix basal cell carcinoma. The record notes that the Veteran was cured of this skin cancer, and there is no indication in subsequent medical records suggesting any further treatment for basal cell carcinoma. An October 2020 VA examination notes a diagnosis of seborrheic/actinic keratosis. The Veteran reported that he had “skin issues” for years, most prominent over the last ten years and affecting mostly his upper extremities and ears. The examiner opined that the Veteran’s skin disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran’s service records are silent for chronic skin pathology during his active duty; his separation physical in August 1957 noted normal skin. Post-discharge medical records are also silent for chronic dermatopathology proximate to his military service. The examiner indicated that the Veteran was fair skinned and described “skin issues”, especially over the last ten years. The examiner noted that the medical treatment records report a history and treatment for seborrheic and actinic keratosis over the last five years, which the examiner stated was not unexpected given the Veteran’s very fair complexion. The records also reflect that the Veteran was status post excision of a basal cell carcinoma skin lesion to his right ear in 2007; however, the examiner indicated that the current examination was negative for suspicious skin cancer. Further, the examiner indicated that the Veteran was service connected for respiratory asbestosis; however, there was no documentation for asbestos related dermatopathology/diagnosis. As noted above, however, the Board previously found that this October 2020 opinion was inadequate because the VA examiner failed to provide an explanation or any rationale with regard to the Veteran’s skin disability based on the acknowledged in-service asbestos exposure. In the December 2020 addendum, a VA examiner opined that it is less likely than not that the Veteran has a skin disability that is etiologically related to his active service, to include exposure to in-service asbestos sustained therein. The examiner, indicating concurrence with the prior VA opinion, reasoned that when dermatitis occurs due to asbestos exposure (which is not common), it appears first as acute dermatitis; then, if the exposure continues, it can become chronic over the years. The examiner stated that there are not any acute symptoms of dermatitis documented during his exposure to asbestos in service and his service medical records are silent for any skin problems; as such, the examiner opined that it is very unlikely that the Veteran’s actinic keratosis/seborrheic dermatitis in the past two decades is related to his exposure to asbestos in the 1950’s. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that service connection is warranted for any skin disorder present during the appeal period. There is no evidence that a skin disorder was present during the Veteran’s period of active duty or manifested to a compensable degree within one year of separation. Even recognizing his in-service asbestos exposure and reported in-service sun exposure, the Veteran does not claim that he received a diagnosis or treatment for a skin disability or skin symptoms during active service. Indeed, while the Veteran indicated that any sun exposure illness was only minimally treated aboard his ship, the Board notes that the Veteran has not indicated that he ever sought such treatment or otherwise had skin symptoms of any kind during service. Additionally, his separation examination reveals a normal skin evaluation. The earliest indication that the Veteran received a diagnosis of a skin disability or any related treatment was 2000, per his treatment records, which is supported by the Veteran’s October 2020 report that he experienced skin issues for years, most prominently in the last ten years. Thus, although the Veteran’s report of having skin issues “for years” is vague, there is no evidence in this case, nor has the Veteran indicated, that a skin disability had its onset during his period of active service. Nor is there evidence to suggest the presence of a skin disability until many years after the Veteran’s service; accordingly, the Board finds that there is no indication of continuity of symptoms since the Veteran’s period of service or that the Veteran’s skin disability manifested to a compensable degree within one year of his separation from military service. Thus, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309(a). The Board also finds that the weight of the probative evidence of record is against a finding that any current skin disorder is related to the Veteran’s active service, to include as due to his asbestos exposure. Significantly, there is no medical opinion of record indicating that the Veteran’s skin disorder is related to active service, to include as due to asbestos exposure. The Board finds the December 2020 VA examiner’s opinion highly probative in determining whether the Veteran’s skin disorder was related to his in-service asbestos exposure. The December 2020 opinion was based on a review of the pertinent medical evidence of record, including the Veteran’s in-service, post-service medical records, and prior VA examination, and provided supporting rationale for the opinion. The VA examiner, nonetheless, found that the Veteran’s skin disability was less likely than not related to active service, to include as due to his in-service asbestos exposure. There is no medical opinion to the contrary. With regard to the Veteran’s contention that his skin disorder is related to his reported in-service sun exposure, the Board finds probative the opinion of the October 2020 VA examiner that the Veteran’s skin conditions were less likely than not incurred in or caused by any in-service injury or event. The examiner’s opinion is based on the Veteran's medical history and is supported by a clear explanation sufficient for the Board to make an informed decision. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304. The Board recognizes and has considered the Veteran’s contention that his skin disorder is related to his active service, to include his in-service asbestos exposure. While the Veteran is competent to report his observable symptoms, he is not competent to provide a diagnosis in this case. The Board finds that the matter of the etiology of a skin disorder is one within the province of trained professionals. As the Veteran is not shown to have the appropriate training and expertise, he is not competent to render a probative opinion regarding the medical matter upon which this claim turns. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Thus, the probative value of the examiner’s opinion outweighs that of the Veteran, as the examiner has more education, experience and training in determining the etiology of a skin disability. The Board notes that the Veteran has not submitted competent evidence contradicting the opinions of the October 2020 and December 2020 VA examiners. Further, the Veteran has not provided any competent evidence of a link between a current skin disability and his period of active service. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a skin disability. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and service connection must be denied. 38 U.S.C. § 5107(b). Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, 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.