Citation Nr: 21023524 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-25 290 DATE: April 20, 2021 ORDER Entitlement to service connection for skin cancer, to include as due to herbicide agent exposure is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The Veteran’s skin cancer was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for skin cancer are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 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 U.S. Army from August 16, 1965 to August 13, 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2014 and May 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO denied service connection for skin cancer and sleep apnea, respectively. In October 2019, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of the hearing is of record. Governing law and regulation provides that the VLJ who conducts a hearing with regard to a legacy appeal must participate in any decision made on the appeal (unless the appellant waives this procedural guarantee). Via a February 2021 letter, the Veteran was thus informed that he could request another hearing before a different VLJ. He was also notified that if he did not respond within 30 days from the date of that letter, the Board would assume that he did not desire another hearing and would proceed accordingly. As no response has been received, consistent with the February 2021 letter, the Board finds that there is no outstanding request for another hearing, and will proceed with adjudication of the Veteran’s claims. The instant matters were previously before the Board in January 2020, at which time they were remanded for further development. Upon completion of that development, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC) in which it continued to deny service connection for skin cancer and sleep apnea. Those matters were thereafter returned to the Board for further appellate consideration. Service Connection – Skin Cancer In the instant case, the Veteran is seeking service connection for skin cancer, which believes is due to exposure to sun and/or herbicides while serving in the Republic of Vietnam. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including malignant tumors, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Also for chronic diseases, as defined by regulation, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303 (b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309 (a)); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). In the instant case, private treatment records from September 2011 shows a diagnosis of squamous cell carcinoma. The Veteran has not asserted, and the evidence does not otherwise show, skin cancer diagnosed within a year of separation from service. Based on this evidence, there is no indication that skin cancer manifested to a compensable degree within one year of the Veteran’s separation from military service in 1968. Accordingly, the one-year presumption for malignant tumors under 38 C.F.R. §§ 3.307 and 3.309 is not helpful, nor are the provisions of 38 C.F.R. § 3.303(b) pertaining to chronicity or continuity of symptomatology. Service connection is therefore not warranted for skin cancer on a presumptive basis for chronic diseases. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3); 3.309(a). The law further provides that there are certain diseases that are associated with exposure to “herbicide agents” during active military, naval, or air service, and are thus presumed to have been incurred in or aggravated during active military service if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.. § 1116(a); 38 C.F.R. § 3.309(e). 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, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). As verified by the Veteran’s service personnel records, the Veteran served in Vietnam during the requisite time period and is thus presumed to have been exposed to an herbicide agent during service. Accordingly, service connection is warranted on a presumptive basis if it is shown that the Veteran has one of the diseases enumerated in 38 C.F.R. § 3.309(e), provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.. § 1116(a); 38 C.F.R. § 3.309(e). Initially, the Board notes that skin cancer is not one of the enumerated disabilities listed under 38 C.F.R. § 3.309(e). Thus, although the Veteran served in the Republic of Vietnam during the requite time period, because he has not been diagnosed with a disability for which the Secretary has specifically determined that a presumption of service connection should apply based on herbicide exposure, the provisions of 38 C.F.R. §§ 3.307(a)(6) and 3.309(e) are not for application. Regardless of whether a claimed disability is recognized under 38 C.F.R. § 3.309(e), a veteran is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). On the issue of direct service connection, again, the Board notes that the Veteran has a current diagnosis of skin cancer. He is also presumed to have been exposed to herbicides in service and the Board also concedes that the Veteran likely had some intensive sun exposure while stationed in Vietnam. Thus, the question is one of nexus. As to the question of nexus, the Veteran’s STRs shows treatment for Athlete’s foot/tinea pedis and an abscess in the coccygeal area. There is no indication, however, of skin cancer and his skin was clinically evaluated as normal at the time of separation from service. The Veteran’s post-service medical records show that he was not diagnosed as having skin cancer until 2011. In March 2020, the AOJ obtained a medical opinion regarding the etiology of the Veteran’s skin cancer. The VA clinician reviewed the record, noting treatment in service for various skin conditions, including pilonidal abscesses and tinea pedis. The clinician then opined that the it is less likely than not that the Veteran’s skin cancer is related to service. As rationale for that opinion, the clinician addressed the general risk factors for the development of skin cancer, to include, male biological gender, chronic sun exposure, fair skin, history of skin cancer or actinic keratosis, age (especially being over 50 years of age), and family history of skin cancer. The clinician then noted that the Veteran has a family history of skin cancer on his father’s side and is of fair skin. The clinician also noted a documented history of actinic keratosis, which he explained is a pre-cancerous skin lesion directly attributable to chronic sun exposure. The clinician noted that although the Veteran likely had some intensive sun exposure while stationed in Vietnam, there was no indication of any sun burns or other evidence of overexposure to sun during that time. The clinician also noted that the Veteran had less than one year of sun exposure in Vietnam and thus opined that it was more likely than not that the Veteran’s skin cancer was proximately due to or related to cumulative and chronic effects of sun exposure during the 43 years since service, as well as the Veteran’s other risk factors that are independent of service in Vietnam. The clinician also opined that there was no scientific basis upon which to conclude that there was an etiological relationship between the Veteran’s herbicide exposure and later development of skin cancer. As to whether service connection may be established on a direct basis, as indicated, the record reflects no diagnosis of skin cancer in service or for years thereafter. In fact, the post-service evidence does not document a diagnosis of skin cancer until 2011, more than 40 years after the Veteran’s discharge. The Board points that the absence of documented evidence of a claimed disability for many years after service is a factor that tends to weigh against a claim for service connection for the disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the Board accepts as probative the VA clinician’s negative nexus opinion. Here, the clinician reviewed the record and acknowledged the Veteran’s belief that his skin cancer is due to herbicide and/or sun exposure during service while serving in Vietnam; however, he ultimately concluded that the lack of scientific evidence to support a relationship between skin cancer and herbicide exposure and the lack of evidence showing any indication of skin cancer during the Veteran’s active duty service or for more than years after service, when considered along with this Veteran’s identified risk factors for the development of the disease, weighs against a finding that his currently skin cancer is related to service. Notably, there is no indication that VA clinician failed to consider any relevant evidence before providing the requested opinion. The Board also finds no reason to discount the medical opinion based on the clinician’s expertise and qualifications as a medical professional. Significantly, moreover, there is no contrary, probative opinion for the VA clinician’s opinion to be weighed against. In addition to the medical evidence discussed above, the Board has considered the lay assertions of record. However, such assertions do not provide persuasive support for the claim As a layperson, the Veteran is certainly competent to report matters within his own personal knowledge, such as the occurrence of an injury, and as to the nature, onset and continuity symptoms experienced. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Here, the Veteran has reported that he has never been a sun worshiper and has worked indoors. Although that may be true, as noted by the VA clinician, the Veteran has a familial history of skin cancer and also has actinic keratosis, both of which are risks factors for the development of skin cancer. Moreover, as to the Veteran’s belief that his skin cancer is due to sun and/or herbicide exposure, the matter of medical etiology of medical disabilities is generally one within the province of trained medical professionals. See Jones v. Brown, 7. Vet. App. 134, 137-38 (1994). Although lay persons are competent to provide opinions on some limited medical issues, such as those involving an observable disability, see Kahana v. Shinseki, 24. Vet. App. 428, 435 (2011)), the etiology of skin cancer is a complex medical matter involving internal processes, and, thus, one that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). As the Veteran here is not shown to be other than a layperson without appropriate medical training and expertise, he is not competent to render a probative (i.e., persuasive) opinion on the complex matter of medical etiology upon with this claim turns. Id. As, in connection with this claim, lay assertions as to the etiology of the disability for which service connection is sought have no probative value, the Board points out that the Veteran can neither support his claim, nor counter the competent, probative medical etiology opinions of record, based on such lay assertions, alone. For all the foregoing reasons, the Board finds that the claim for service connection for skin cancer, must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND Regarding the Veteran’s claim for service connection for sleep apnea, that matter was previously remanded for the AOJ to obtain a new medical opinion addressing the likelihood that the Veteran’s sleep apnea was caused or aggravated by his service-connected PTSD. In that action, the Board cited to various medical studies suggesting an association between psychiatric disorders, to include PTSD, and the development of sleep apnea. The Board directed that the reviewing clinician was to address these studies. A medical opinion was obtained in March 2020. Upon review of the opinion, the Board finds that it is not adequate to rely upon for adjudication purposes. Although the VA clinician noted that research has shown an association between sleep apnea and PTSD and has shown that certain veterans with PTSD are at an increased risk for sleep apnea, the clinician stated that to date, there is no established etiological basis for sleep apnea due to PTSD. Here, although the examiner cited to two studies, he does not explain why he is discounting the medical literature that the Board instructed him to consider. Further, although the VA clinician identified several risk factors for the development of sleep apnea, such as excess weight and the aging process, he fails to discuss the specific facts of the Veteran’s case. Additionally, the clinician does not address aggravation. Accordingly, the Board finds that the opinion is neither adequate to rely upon nor compliant with the terms of the Board’s prior remand. Another remand is therefore required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliances with the terms of the remand); 38 C.F.R. § 3.159(c)(4). The matter is REMANDED for the following action: Arrange to obtain a medical opinion from an appropriate clinician addressing the etiology of the Veteran’s diagnosed sleep apnea, based on claims file review. (Only arrange for the Veteran to undergo VA examination, by an appropriate clinician, if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion.) The contents of the entire, electronic claims file must be made available to the designated clinician. Upon review of the claims file, the clinician should provide an opinion as to whether it is at least as likely as not that the Veteran’s service-connected PTSD has caused or made chronically worse the Veteran’s sleep apnea. The clinician must address both causation and aggravation, and separate opinions for each should be rendered. Complete, clearly-stated rationale for the conclusions reached must be provided. The clinician is reminded that merely stating that it is his or her opinion that a condition was not caused or aggravated by a service-connected disability is not sufficient. An explanation is required that takes into account the record and pertinent medical principles and the clinician’s rationale should include citation to pertinent evidence and/or medical principles relied upon to form the opinion. (Continued on the next page)   The clinician must also specifically consider and discuss the published literature that suggests an association between PTSD and sleep apnea, to specifically include at least the following studies: Dr. Mahilika A. Gupta, et al., Obstructive Sleep Apnea and Psychiatric Disorders: A Systematic Review, 11(2) J. Clin. Sleep Med. 165 (2015); Dr. Amir Sharafkhaneh, et al., Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort, 28(11) Sleep 1405 (2005); and Dr. Philippe Jaoude, et al., Sleep-disordered breathing in patients with PTSD, 12(2) Ann. Am. Thorac. Soc. 259 (2015). The clinician must provide reasons for any finding as to why these studies are found persuasive or non-persuasive. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.