Citation Nr: 21022239 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-60 013 DATE: April 15, 2021 ORDER Entitlement to service connection for skin cancers, diagnosed as basal cell carcinoma, squamous cell carcinoma and melanoma, is granted. FINDING OF FACT The Veteran’s skin cancers, diagnosed as basal cell carcinoma, squamous cell carcinoma and melanoma, are related to his service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, his skin cancers, diagnosed as basal cell carcinoma, squamous cell carcinoma and melanoma, are related to his active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to November 1970, including service in the Republic of Vietnam from June 1969 to June 1970. His awards include a Combat Infantryman Badge (CIB). This appeal is before the Board of Veterans’ Appeals (Board) on appeal of a March 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in April 2021. 1. Service connection for skin cancer is granted Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 138 C.F.R. § at 54). The Veteran contended that his skin cancer was caused by his service, specifying that exposure to Agent Orange led to his skin cancer. In his December 2015 claim for service connection, the Veteran reported having a “skin disorder since Vietnam.” With regard to the first requirement for service connection, a current diagnosis, VA treatment records show basal cell carcinoma on the Veteran’s February 2016 Active Problem list and private treatment records include December 2015 diagnoses of basal cell carcinoma. See, also, December 2004 and June 2005 private pathology consultation and diagnostic reports noting biopsy and diagnosis of basal cell carcinoma. The Board also finds that the second requirement of service connection, in-service disease or injury, is met. Specifically, the Veteran’s DD Form 214, Armed Forces of the United States, Report of Transfer or Discharge, shows he served in the Republic of Vietnam from June 1969 to June 1970 (and is therefore presumed to have been exposed to herbicides/Agent Orange in service). 38 U.S.C. § 1116. Alternatively, as will be addressed further below, the Board finds that the Veteran’s sun exposure in Vietnam are consistent with the circumstances of his service. Finally, the Board finds that the third element of service connection, a nexus between the in-service incurrence and the claimed disability, is also satisfied. An October 2016 statement from J. C. C., M.D. (Dr. C), notes having treated the Veteran for skin conditions (primarily actinic keratosis) in the past; his current diagnoses of basal cell carcinoma, squamous cell carcinoma and melanoma skin cancer and his history of Agent Orange exposure while serving in Vietnam. Dr. C opined that the Veteran’s actinic keratosis lesions “very easily could have progressed to the squamous cell carcinoma” and his Agent Orange exposure while serving in Vietnam “could very easily have contributed to and most likely did contribute to his skin conditions later in life.” A November 2016 letter from the Veteran’s physician, M. J. K., M.D. (Dr. K), who is board certified in dermatology and dermatopathology, states that the Veteran has been treated for skin cancers, including basal cell carcinoma, squamous cell carcinoma and melanoma as well as numerous pre-cancerous actinic keratoses. After researching Agent Orange exposure in Vietnam, Dr. K found that “the incidence of various skin cancers is higher in persons exposed to Agent Orange compared to the general population.” In addition, Dr. K found that “simply defoliating the natural vegetation in Vietnam would have allowed for more ultraviolet radiation exposure [to the Veteran,] which is another known risk factor for development of the types of skin cancer he has suffered.” In addition to the above medical nexus opinions, the Veteran also submitted numerous articles obtained from internet research regarding the association between Agent Orange exposure and skin cancer. A February 2017 letter from D. V. S., M.D. (Dr. S), a physician who has treated the Veteran for “several decades” and is aware of his “subsequent preponderance to skin cancers including 17 basal cell carcinomas, 6 squamous cell carcinomas and 1 melanoma,” includes the opinion that, after researching Agent Orange exposure in Vietnam, “it appears that virtually all skin cancers and chloracne are very likely caused by” exposure to Agent Orange (or certainly predispose a Veteran to such skin cancers). Dr. S concluded that “it is very plausible that his Agent Orange exposure played a significant role in the development of [the Veteran’s] subsequent skin cancers.” A May 2017 VA medical advisory opinion, based on review of the claims file, determined that the Veteran’s skin cancer is less likely than not related to his service because “[s]kin cancers are not conditions associated with herbicide exposure. Sun exposure is the most important environmental cause of basal cell carcinoma, squamous cell carcinoma of the skin and malignant melanoma (BCC, SCC, MM) and most risk factors related directly to a person’s sun exposure habits or susceptibility to solar radiation. These risk factors include having fair skin, light-colored eyes, red hair, northern European ancestry, older age, childhood freckling, and an increased number of past sunburns. The type, quantity, and timing of sun exposure associated with an increased risk of BCC, SCC MM are not clearly defined. Childhood sun exposure appears to be more important than exposure during adult life.” A subsequent May 2019 addendum opinion notes the VA examiner reviewed the private opinions and the earlier opinion remained unchanged. In view of the above, the Board finds that the evidence is at least in equipoise that the Veteran’s skin cancers, diagnosed as basal cell carcinoma, squamous cell carcinoma and melanoma, are related to sun exposure during his period of active service. Specifically, Dr. K opined that “simply defoliating the natural vegetation in Vietnam would have allowed for more ultraviolet radiation exposure [to the Veteran,] which is another known risk factor for development of the types of skin cancer he has suffered.” This opinion is supported by the VA medical advisory opinion, finding that “[s]un exposure is the most important environmental cause of basal cell carcinoma, squamous cell carcinoma of the skin and malignant melanoma.” There is no requirement for total causation by an injury or event in service. While the Veteran likely had sun exposure during other times and circumstances of his life, he was in the Republic of Vietnam from June 1969 to June 1970 and he testified to significant exposure and being “bare chested” often due to the hot climate. Thus, the medical opinion evidence is at least in equipoise that the cause of the Veteran’s skin cancer is at least in part due to sun exposure during service. When reasonable doubt is resolved in the Veteran’s favor, the Board finds that his skin cancers are related to sun exposure during service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for skin cancers, diagnosed as basal cell carcinoma, squamous cell carcinoma and melanoma, is warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K Hughes 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.