Citation Nr: 21013586 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 12-19 537 DATE: March 9, 2021 ORDER Service connection for basal cell carcinoma and squamous cell carcinoma is granted. FINDINGS OF FACT 1. The Veteran has diagnoses of basal cell carcinoma and squamous cell carcinoma (non-melanoma skin cancer). 2. The was exposed to organic arsenic and had ultraviolet light exposure during service. 3. The non-melanoma skin cancer is related to the in-service organic arsenic and ultraviolet light exposure. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for non-melanoma skin cancer are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active duty service from September 1967 to September 1970. This included service in the Republic of Vietnam from February 1968 to February 1969. The instant case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied service connection for skin cancer. This case has been before the Board of Veterans’ Appeals (Board) previously. Most recently, in January 2019, the Board denied the claim for service connection for non-melanoma skin cancer. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 decision, the Court vacated and remanded the Board decision. Service Connection Legal Authority Direct Service Connection Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. Chronic Disease Presumptive Service Connection Cancer is a “chronic disease” for purposes of presumptive service connection (38 C.F.R. § 3.309(a)); accordingly, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a); Walker, 703 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in-service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of 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. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, 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. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service Connection for Non-Melanoma Skin Cancer is Granted. The Veteran has claimed service connection for non-melanoma skin cancers that he asserts are due to organic arsenic exposure. The Veteran reports significant sun (ultraviolet light) exposure as a light vehicle operator and as an infantryman while in the Republic of Vietnam. The Veteran has been diagnosed with a basal cell carcinoma and a squamous cell carcinoma. See July 2018 VA opinion; see also November 2018 Dermatology Procedure Note (stating that a basal cell carcinoma was excised in 2008 and squamous cell carcinoma was excised in 2013). Concerning an in-service incurrence, the Veteran has presumptive exposure to cacodylic acid, which is an organic arsenic, due to his service in the Republic of Vietnam. See 38 C.F.R. § 3.307(a)(6). The Veteran served as a light vehicle operator and as an infantryman while in the Republic of Vietnam, which would have resulted in significant sun (ultraviolet light) exposure. The Board finds that the Veteran’s civilian sun (ultraviolet light) exposure while working as a factory worker (before service) and as a truck driver and correctional officer (after service) would not be as significant as the in-service ultraviolet light exposure. The Board finds that the evidence is at least in equipoise as to whether the organic arsenic and ultraviolet light exposure during service caused the current non-melanoma skin cancer. In a January 2017 VA opinion, the VA examiner stated that, per Up to Date, the most important risk factor for basal cell carcinoma was sun exposure/ultraviolet radiation; however, the examiner also indicated that another risk factor was arsenic exposure. The VA examiner reasoned that, per Up to Date, the most important risk factors for squamous cell carcinoma are sun exposure and age, but also indicated that arsenic exposure was a risk factor. In a July 2018 opinion, a dermatologist focused on the significant of ultraviolet radiation as the main risk factor for non-melanoma skin cancer; however, the dermatologist stated that inorganic arsenic has also been described to be carcinogenic in the skin, as well as to potentially amplify the carcinogenesis of ultraviolet radiation. (Continued on the next page)   Given that both medical opinions find that organic arsenic exposure is a contributing factor to non-melanoma skin cancer, and given that the Veteran is presumed to have been exposed to organic arsenic and to have increased sun exposure during service, the Board resolves reasonable doubt in favor of the Veteran and grants direct service connection for basal cell carcinoma and squamous cell carcinoma. All other service connection theories of entitlement are rendered moot by the grant of direct service connection, to include chronic disease presumptive service connection of 38 U.S.C. § 1112 and 38 C.F.R. § 3.303(b). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.