Citation Nr: 21021927 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 05-19 131 DATE: April 14, 2021 ORDER Entitlement to service connection for squamous cell carcinoma of the neck is denied. FINDING OF FACT The Veteran’s squamous cell carcinoma of the neck was not incurred in service, was not otherwise causally or etiologically related to herbicide agent exposure or harmful ultraviolet light or sunlight exposure in-service and did not manifest within one year of service separation. CONCLUSION OF LAW The criteria for entitlement to service connection for squamous cell carcinoma of the neck have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 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 Army from February 1965 to February 1967 and from April 1967 to April 1971, and in May 1992. The Veteran had service in the Republic of Vietnam during the Vietnam Era. This matter is on appeal from an October 2004 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran passed away in December 2014, during the pendency of this claim. The appellant is the Veteran’s surviving spouse. This matter previously came before the Board in October 2014, September 2020 and December 2020, whereupon it was remanded to allow for additional development, to include obtaining an etiology opinion and an addendum opinion regarding the nature, onset, progression, and severity of the Veteran’s skin disability. VA obtained adequate addendum opinions in January 2021 and February 2021, in accordance with the remand directives. Therefore, the Board finds that there has been substantial compliance with its remand directives, and no further action in this regard is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran served in the Republic of Vietnam between January 1962 and May 1975. 38 C.F.R. § 3.307(a)(6). VA has conceded the Veteran’s exposure to herbicides in Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Squamous cell carcinoma is not a disease for which presumptive service connection may be granted. As such, the presumptive service connection provisions of 38 C.F.R. § 3.307(a)(6) are not for application in this matter. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. 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 also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for squamous cell carcinoma of the neck The Veteran contends that his squamous cell carcinoma of the neck was related to his service. Specifically, he contends that his squamous cell carcinoma of the neck was related to his in-service herbicide agent exposure and harmful sunlight exposure in Vietnam. The Veteran was diagnosed with squamous cell carcinoma in the neck in 2003. Service treatment records are silent for any complaints, treatments, and/or diagnoses relating to any carcinoma or skin-related disorders. His skin was found to be normal on service separation. The Veteran was provided a VA examination in December 2014. The VA examiner stated that the Veteran was scheduled for a lung biopsy the week of the examination and that this biopsy would be important in determining whether or not the Veteran had squamous cell carcinoma in his lungs or whether the lung condition was new and separate. The examiner stated that it was unclear whether or not the new lesions were a new condition, part of his old condition, or a combination of both and the biopsy was pending. The Board in its September 2020 remand found that without the biopsy results, the examiner was unable to make a fully informed opinion regarding the Veteran's condition. Therefore, this opinion is being afforded little, if any, probative weight. An October 2020 VA examiner noted that VA concedes exposure to Agent Orange during the Veteran's Vietnam service, that the Veteran was later diagnosed with squamous cell carcinoma of the neck, that the Veteran was later diagnosed with adenocarcinoma of the lungs metastatic to the brain and that none of the conditions are considered to be presumptively due to Agent Orange. The examiner noted that many similar cases have appeared before the courts and in many cases they have been decided in favor of the Veteran and that that he was a residency trained and board certified physician in emergency medicine. The examiner opined that it was at least as likely as not that the Veteran's cancers were caused by exposure during service to Agent Orange. However, the Board found this opinion to be inadequate in its December 2020 remand as no rationale was provided for the examiner’s opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). This opinion is therefore afforded little, if any, probative weight. An additional VA opinions were obtained in January 2021 and February 2021. The January 2021 VA examiner opined that the Veteran's squamous cell carcinoma was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness as the Veteran’s service treatment records are silent for onset, complaints or diagnoses related to squamous cell carcinoma, there is no medical evidence or literature to support the theory that squamous cell carcinoma was caused by exposure to Agent Orange and that the 2018 update to the National Academy of Sciences (NAS) Institute of Medicine report further supports that there is no association found or supported by medical evidence of a relationship between the squamous cell carcinoma and agent orange exposure. The examiner noted that the Veteran noticed a lump on his right neck, that a biopsy showed it to be squamous cell carcinoma, that he underwent a course of chemotherapy and radiation but was stopped about two-thirds through due to intolerance of the treatment and that he underwent a radical neck dissection that was negative for lymph node involvement. The examiner noted that squamous cell carcinoma of the skin occurs when the flat, thin squamous cells in the middle and outer layers of the skin develop changes (mutations) in their DNA, that the cell's DNA contains instructions that tell a cell what to do, that the mutations tell the squamous cell to grow out of control and to continue living when normal cells would die and that most oof the DNA mutations in skin cells are caused by ultraviolet radiation found in sunlight and in commercial tanning lamps and tanning beds. The examiner noted that sun exposure doesn't explain skin cancers that develop on skin not ordinarily exposed to sunlight and that this indicates that other factors may contribute to the risk of skin cancer such as having a condition that weakness the immune system. The examiner noted that other risk factors included excessive sun exposure, spending lots of time in the sun, the use of tanning beds, a history of sunburns, a personal history of precancerous skin lesions, a personal history of skin cancer, a weakened immune system or a rare genetic disorder. In February 2021, the VA examiner further opined that the evidence of record does not show that the Veteran as any history of using tanning beds but does show that he served in Vietnam from January 1968 to January 1969. The examiner noted that Vietnam was known to be a sunny and topical climate and the part of the Veteran's body which was affected with squamous cell carcinoma was an exposed area to the sun, namely the neck. The examiner opined that it was less likely than not that one year of service in Vietnam would result in squamous cell carcinoma, that it was understood that the Veteran was exposed to the sun in Vietnam and that it would be expected that he would be exposed to the sun at other times throughout his life. The January 2021 and February 2021 opinions, taken together, are highly probative as the examiner reviewed the claims file and provided an opinion supported by a clear rationale. Id. There is no contrary opinion of record. The Board notes that the Veteran and the appellant have contended that the Veteran’s squamous cell carcinoma is the result of his service. 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 v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran’s squamous cell carcinoma and any instance or event of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, while the Veteran was competent to describe his symptoms and the appellant is competent to describe her observations regarding the Veteran’s symptoms, the Board accords their statements regarding the etiology of the Veteran’s squamous cell carcinoma little probative value because he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issued. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of diagnostic testing. In the instant case, there is no suggestion that the Veteran or the appellant has had any medical training. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinions of the Veteran and the appellant are non-probative evidence. (Continued on the next page)   Thus, the claim for service connection for squamous carcinoma of the neck fails as the preponderance rests against a finding of service connection, either on a presumptive or direct basis. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kashif I. Ali, 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.