Citation Nr: 21022158 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-20 772 DATE: April 14, 2021 ORDER Service connection for a skin disorder is denied. FINDINGS OF FACT 1. The Veteran had active service from October 1967 to August 1971, to include service in the Republic of Vietnam between July 1968 and July 1969. 2. A skin disorder, to include basal cell carcinoma and keratoses, was not shown in service, was not continuous since service, was not shown to a compensable degree within one year of separation from service, was not shown for many years after service, and is not causally or etiologically related to service, to include as due to in-service exposure to Agent Orange. CONCLUSION OF LAW A skin disorder was not incurred in service, may not be presumed to have been incurred in service, nor is it due to exposure to herbicide agents. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In May 2020, the Board remanded the claim on appeal for additional development. Of note, the Board observed that there was no claim at issue for squamous cell carcinoma and tinea cruris with neurodermatitis, as the Veteran had been granted service connection for the disorders in August 2019. The case has now been returned to the Board for further appellate action. In January 2021, the Veteran filed a Form 10182 appealing the reduction of a rating for his service-connected esophageal cancer and the discontinuance of his entitlement to special monthly compensation (SMC). As the claims were appealed under the system established by the Appeals Modernization Act (AMA) rather than the “legacy” appeals process, they will not be considered in this decision and will be addressed at a later date. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Next, service connection may be granted on a presumptive basis for certain diseases associated with exposure to herbicides if a veteran (1) served in the Republic of Vietnam between January 1962 and May 1975. 38 C.F.R. § 3.307(a)(6). Notwithstanding the foregoing provisions regarding presumptive service connection for exposure to herbicide agents, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran contends that his skin disorders are the result of exposure to Agent Orange while serving in Vietnam. Further, malignant tumor, such as basal cell carcinoma, is a chronic disorder under 38 C.F.R. § 3.309(a) and presumptive service connection will also be addressed, as well as direct service connection. Turning first to direct service connection, the Veteran has been diagnosed with a skin disorder. Specifically, a March 2019 medical treatment note diagnosed seborrheic and actinic keratoses and an August 2019 VA examination diagnosed BCC. Accordingly, a current disorder has been shown and the first element of service connection has been met. As to an in-service incurrence, a review of the service treatment records (STRs) reveals that the Veteran was diagnosed with neurodermatitis in December 1969; however, the May and August 1971 separation examinations found his skin and lymphatics systems to be clinically normal and he reported in the associated Reports of Medical History that he did not then-presently or previously have skin diseases, tumors, growths, cysts, or cancers. Further, the STRs are otherwise silent for complaints, treatment, or diagnoses of any skin disorder or any symptoms reasonably attributed to a skin disorder other than the already service-connected neurodermatitis. As neither basal cell carcinoma or seborrheic and actinic keratosis were not noted in the STRs, the second element of direct service connection – an in-service incurrence – has not been met and the medical evidence does not support service connection on a direct basis. As to presumptive service connection, basal cell carcinoma and seborrheic and actinic keratosis were not shown in service and did not manifest to a compensable degree within one year of separation from service. Specifically, in October 1997, more than 25 years after discharge, the Veteran reported a lump on his back and was found to have two lipomas on his back of no clinical significance. Subsequently, May 2013 and August 2015 medical treatment notes identified a lesion on his left neck, left forehead, and upper back. Even assuming that he developed symptoms of a skin disorder, to include basal cell carcinoma and keratoses, as early as October 1997, this is well outside the one-year legal presumption for certain chronic disorders such as basal cell carcinoma. Next, the record does not establish continuity of symptomatology under 38 C.F.R. § 3.309(a). As noted above, the evidence shows that the Veteran’s first recorded skin disorder was identified as early as 1997, 26 years after his separation from service but was found to have no clinical significance. The first lesions were identified in May 2013, some 30+ years after discharge. In light of the above, the medical evidence does not support presumptive service connection based on chronicity or continuity of symptomatology. As to presumptive service connection based on herbicide exposure, the Veteran served in Vietnam and exposure to Agent Orange is presumed; however, basal cell carcinoma and seborrheic and actinic keratoses are not disabilities for which service connection is warranted on a presumptive basis due to herbicide exposure under 38 C.F.R. § 3.309(e). Therefore, the medical evidence does not support service connection for a skin disorder on the basis of presumed exposure to Agent Orange. Notwithstanding the inapplicability of the Agent Orange presumptive service connection, the Board has considered the claim on a direct causation basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As noted, there were no in-service complaints, of, treatment for, or diagnoses related to basal cell carcinoma or seborrheic and actinic keratoses. Post-service medical evidence does not establish a direct causation between the Veteran’s skin disorder and herbicide exposure. In this regard, the Veteran reported in an August 2014 treatment note that he had a lesion of concern on his posterior neck that had been a problem for 5 years and was diagnosed with actinic keratosis. Similarly, in an August 2015 treatment note, clinicians identified lesions on his left forehead and upper back that had been a concern for 4 years with no history of any previous similar lesion and diagnosed a basal cell carcinoma lesion. In addition, August 2019 and May 2020 VA examiners opined that basal cell carcinoma and keratoses were less likely than not caused by in-service exposure to Agent Orange. Rather, the examiners opined that the Veteran’s his skin disorders were the product of extended post-separation sun exposure, explaining that chronic sun exposure was a primary identified causative risk for the disorders and that the Veteran had a history of working outdoors and engaging in leisure and recreational activities after his separation from service. Accordingly, the medical evidence does not support service connection on a direct causation basis. The Board has considered the lay statements submitted by the Veteran regarding the etiology of his skin disorder. He is competent to report symptoms and describe his observations because this requires only personal knowledge as it comes to his through his senses. However, he is not competent to offer opinions as to the etiology of any current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during his current appeal and by service and medical treatment records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, 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.