Citation Nr: 21015067 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-24 124 DATE: March 16, 2021 ORDER Entitlement to service connection for skin cancer, to include as due to herbicide agent exposure, is denied. FINDING OF FACT 1. The Veteran served in Vietnam during the Vietnam War and is presumed to have been exposed to herbicide agents. 2. The Veteran’s skin cancer first manifested many years after service and the most probative evidence has not medically related his current disability to his service. CONCLUSION OF LAW The criteria for service connection for skin cancer are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The records reflect that the Veteran served on active duty in the United States Marine Corps from September 1966 to September 1969, to include service in Vietnam from February 1968 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This rating decision denied service connection for squamous cell carcinoma or skin cancer, based on finding no link between the claimed condition and his exposure to herbicide agents, to include Agent Orange, as well as no link between the claimed condition and his military service. The Veteran was provided a Board Hearing in January 2019. A transcript of the hearing has been associated with the claims file. The case was remanded for further development in May 2019. While the claim was on remand, the Veterans Law Judge who conducted the January 2019 hearing retired. In November 2020, the Board informed the Veteran of this situation, and offered an additional hearing. The Veteran was further notified that if he did not respond within 30 days, the Board will assume that he did not want another hearing and proceed accordingly. As the Veteran did not request an additional hearing, the Board will adjudicate the appeal. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Certain chronic diseases (like cancers) 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 (typically one year); 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, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The governing law provides that a “veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent… unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” Service in the Republic of Vietnam under this provision includes service on the landmass and service on inland waterways. 38 U.S.C. § 1116(f). VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several disorders; however, skin cancer is not one of them. 38 C.F.R. § 3.309(e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for skin cancer, to include as due to herbicide agent exposure. The Veteran seeks entitlement to service connection for skin cancer, which he contends was caused by exposure to an herbicide agent, referred to as Agent Orange, during military service in Vietnam. In the present case, there is no dispute that the Veteran has a current diagnosis of skin cancer. The record clearly reflects that the disease was annotated in a July 2019 VA examination. See Skin Diseases DBQ (July 22, 2019). Therefore, a current disability has been established. Thus, the remaining question here is whether the Veteran’s skin cancer condition was caused by or the result of his military service. The Veteran’s military personnel records confirm that he served in the Republic of Vietnam from February 1968 to March 1969; therefore, he is presumed to have been exposed to herbicides. However, as noted above, skin cancer is not a condition for which presumptive service connection may be granted. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Accordingly, service connection is not presumed on this basis. Notwithstanding the above, the United States Court of Appeals for the Federal Circuit has determined that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Post service treatment records show numerous entries from August 2012 to July 2018 indicating that the Veteran has a diagnosis of skin cancer and a history of treatment for this condition. Further, in support of the Veteran’s contention that service connection is warranted for his skin cancer condition, the Veteran submitted March 2015 and January 2019 private medical opinions by Dr. M.F. See Dr. M.F. Medical Opinions (March 30, 2015; January 16, 2019). In the March 2015 medical opinion, Dr. M.F. stated that the Veteran reports he was exposed to Agent Orange. Dr. M.F. provided that the Veteran has had several skin cancers of both basal cell carcinoma and squamous cell carcinoma. Further, he provided that government literature states that people exposed to Agent Orange may develop these skin cancers. Id. The Board finds no “government literatures” of record or constructively before the Board that link this type of cancer to herbicide exposure. To the extent there is literature that says there “may be” a link, such would be too speculative to establish a relationship in this case. Therefore, the opinion is inadequate to establish service connection. In the January 2019 private opinion, Dr. M.F. provides that not only has the Veteran suffered from basal and squamous cell carcinomas, he has also had pre-cancerous lesions of actinic keratosis and opined that due to the variety of cancers, one must consider possible factors other than mere genetics and sun exposure as causes of the growths. Specifically, Dr. M.F. indicates another risk factor would be exposure to Agent Orange. Id. There is no further explanation as to how or why. Without the underlying analysis, this nexus opinion is rendered incomplete and conclusory. In response to the Board’s January 2019 Remand, the Veteran was afforded a VA examination in July 2019, which provided that the Veteran has a current diagnosis of actinic keratosis, diagnosed in 2010, a personal history of squamous cell carcinoma, diagnosed in 2010, and a personal history of basal cell carcinoma, diagnosed in 2013. See Skin Diseases DBQ (July 22, 2019). Here, the Veteran indicated his basal and squamous cell carcinomas began about 12-15 years ago and since that time, he reported undergoing 4-5 surgical excisions and many liquid nitrogen treatments; the last nitrogen treatment was reported as occurring approximately six months prior, but the record of this treatment was not located by the examiner. The VA examiner further provided that the Veteran did suffer from squamous cell carcinoma, midline vertex scalp, that resolved in 2010; basal cell carcinoma, right T6 back, that resolved with excision in 2013; and the Veteran reported rashes experienced in 1973-1974 that resolved after several years. The VA examiner also noted seeing no visible characteristics of the skin cancer at the time of the examination. Id. Ultimately, the VA examiner concluded that it is less likely than not the diagnosis of skin cancer was caused by or the result of military service. This conclusion was not based in part on the service treatment records being silent as to complaints, treatment or diagnosis of the claimed conditions in service, and in part that this condition was not diagnosed until 35 to 40 years after the Veteran separated from service. Moreover, the examiner opined more common and probable etiologies of the claimed skin cancer condition; those etiologies being that males are affected with squamous cell carcinoma at a ratio of 2:1 in comparison to females, the quantity /timing of sun exposure, sunscreen use, photosensitizing agents, phenotypic traits, genetic variants, and smoking histories. Further, the examiner indicated that with light-skinned individuals, the most important risk factors are cumulative sun exposure (UV light), especially in the past 5-10 years, and age. Id. The examiner also addressed the March 2015 and January 2019 private medical opinions offered by the Veteran. The examiner noted that the government literature statements by Dr. M.F. are an inaccurate reading of the literature and is inconsistent with the current literature as outlined in the National Academies of Sciences Engineering Medicine, publication Veterans and Agent Orange Update 11 (2018), which outlines basal and squamous cell carcinoma as the most common types of cancer diagnosed each year and offers this is most likely due to the better skin cancer detection, people getting more sun exposure and people living longer. The examiner also addressed multiple studies accomplished on this subject and they appear to indicate that there is inadequate or insufficient evidence to determine whether there is an association between exposure to the COIs and basal cell or squamous cell carcinomas. Id. Ultimately, the Board finds the July 2019 VA examination to be highly probative, as it was based on a thorough review of the claims file and provided a detailed report to support conclusions reached. See Bloom v. West, 12 Vet. App. 185, 187 (1999). Alternatively, as it relates to the skin cancer medical opinion rendered by Dr. M.F., such determinations have not been shown to have been based on a review of the pertinent records in the Veteran's claims file. Furthermore, it has not provided an explanation of all conclusions reached, and instead, has erroneously relied upon an inaccurate reading of medical literature. Also, it appears to have been based largely on information provided solely by the Veteran. Therefore, the private medical opinions by Dr. M.F. have been provided very little probative value. Again, the VA examiner’s opinions are based on a thorough review of the pertinent records, they provide the underlying reasons for the conclusion reached and comes to a conclusion that is supported by and not contradicted by the evidence of record. For these reasons, the July 2019 VA examination is afforded greater probative value. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Moreover, the Veteran testified before the Board in January 2019. See Board Hearing Transcript (January 31, 2019). During the hearing, when the Veteran was asked about when he first noticed the appearance of any cancerous abnormalities, the Veteran provided that he did not notice it and was told of the abnormality by his private dermatologist. Further, when asked if he consistently wore appropriate headcover and sunscreen while outside (post military service); after making several wavering assertions, to include that he always wears a headcover and that he normally wore a head cover, the Veteran finally responded with he would almost always wear a headcover, although admittedly that depended on the type of work he was doing outside. He also stated that he would sometimes take off his shirt depending on the type of work he was doing however, he never answered whether he utilized sunscreen when outside. Additionally, when asked whether his dermatologist had ever shared with him why he believed the skin cancer was caused by Agent Orange exposure, the Veteran stated that his provider had never made any specific statements that he could recall. The Veteran went on to include that statements made in the medical opinion provided by Dr. M.F. were first actually suggested by him, and only after he made the suggestion, did Dr. M.F. agree. The Board notes the information related to this conclusion and a lack of any statements indicating why he believed the skin cancer was due to his in-service exposure to Agent Orange would have served as the crux of the Veteran’s supporting evidence for his contentions, but was not supported by any other evaluating providers in any subsequent medical evidence. To the extent the Veteran purports to contend on his own behalf that his skin cancer condition is medically related to his in-service exposure to Agent Orange, the Board notes that lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno, 6 Vet. App. at 469-70. Lay evidence may also be competent to establish medical etiology or nexus. Davidson, 581 F.3d at 1316. However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Here, the Board does not doubt that the Veteran experienced skin cancer issues, as it is supported by the evidence of record; however, the medical evidence of record does not show that this condition was incurred in or caused by his military service and/or manifested during an applicable presumptive period associated with the Veteran’s military service. In this case, although the evidence of record shows the Veteran has a current diagnosis of skin cancer, the same evidence of record is completely absent as to any competent evidence linking the Veteran’s claimed condition with his exposure to Agent Orange during military service. The only statements provided by the Veteran merely offer that the Veteran believes there is a link between his exposure to Agent Orange and his subsequent diagnosis with skin cancer, which occurred 35 to 40 years after separation from military service. Consequently, he has not been shown to possess the requisite medical expertise or knowledge to establish medical etiology or nexus and therefore, his statement is not competent evidence of a current nexus between the skin cancer condition diagnosis being caused by his exposure to Agent Orange. In light of the foregoing, it is the Board's conclusion that questions related to whether the Veteran's skin cancer condition was caused by his Agent Orange exposure are complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe symptomatology he experienced or observed, he cannot, as a layperson, provide competent medical evidence with regard to whether his skin cancer condition had its onset in service and/or was caused by or is the result of his exposure to Agent Orange while positioned in Vietnam. 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 the claim must be denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Associate Counsel Donna M. Williams 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.