Citation Nr: 21023900 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 18-17 242 DATE: April 21, 2021 ORDER Entitlement to service connection for skin cancer as a result of exposure to Camp Lejeune contaminated water (CLCW) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s diagnosed skin cancer began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for diagnosed skin cancer are not met. 38 U.S.C. §§ 1110, 1131, 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 from March 1962 to June 1966, December 1969 to December 1971, and January 1972 to June 1974 in the United States Marine Corps. The claim has been remanded before, most recently in August 2020. There has been substantial compliance with the remand instructions and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for skin cancer as a result of exposure to CLCW The Veteran contends that his diagnosed skin cancer is etiologically related to his exposure to contaminated water while stationed at Camp Lejeune. 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). Further, VA acknowledges that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1, 1953, through December 31, 1987, were potentially exposed to drinking contaminated water with volatile organic compounds. See Veterans Benefits Administration Fast Letter 11-03 (January 11, 2011). VA has established a presumption of service connection for certain diseases for veterans, former reservists, and former National Guard members who were exposed to contaminants in the water supply while serving at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953, to December 31, 1987. See 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Specifically, there is a presumption of service connection for kidney cancer, liver cancer, Non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer, which have become manifest to a degree of 10 percent or more at any time after service if the veteran was stationed at Camp Lejeune between August 1, 1953, and December 31, 1987. Notwithstanding the foregoing presumption, 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 question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of basal cell carcinoma, and evidence shows that he was exposed to contaminants in water at Camp Lejeune, the preponderance of the evidence weighs against finding that the skin disability began during service or is otherwise related to an in-service injury, event, or disease. The September 2020 VA examiner opined that the Veteran’s basal cell carcinoma is not at least as likely as not related to an in-service injury, event, or disease, including exposure to CLCW. The examiner included a detailed review of the Veteran’s post-service medical records. The examiner noted a September 2010 treatment record noting the Veteran has a history of nonmelanoma skin cancer excised “many years ago” with biopsy proven recurrent basal cell carcinoma. A note later that month referred to a 1994 biopsy in the same area. Additional records reviewed included the Veteran’s reports of a history of melanoma, but the treatment records discussed do not include any diagnoses of melanoma; all are either basal cell carcinoma or nonmelanoma skin cancer. The rationale for the September 2020 examiner’s negative opinion was that the Veteran had multiple risk factors for basal cell carcinoma; identified as gender, UV exposure during outside periods while incarcerated, blue eyes, age at the time of diagnosis, and recurrent episodes of skin cancer. The examiner further identified the following factors weighing against the Veteran’s claim: amount of time between CLCW exposure and the cancer manifestation, the fact that the Veteran had basal cell carcinoma not melanoma, and the relatively short period of exposure to CLCW (424 days) compared to the solvent exposure levels cited in the Agency for Toxic Substances and Disease Registry assessment. The examiner also cited the ATSDR assessment’s findings regarding the types of cancers developed in subjects with CLCW exposure, which did not include the development of skin cancers, to include basal cell carcinomas. The Board finds the September 2020 VA opinion probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In January 2021 a VA examiner offered a negative opinion as to both presumptive and direct service connection. The opinion on presumptive service is afforded little probative value as it is based only on the fact that basal cell carcinoma has not included in the pertinent regulation. The examiner also concluded the condition was likely not directly related to service given the lack of pertinent complaints or findings on separation examination in 1974 and earliest treatment for skin cancer in 1994. The Board affords that portion of the opinion more value. Id., at 304. The fact that the claimed disability is not among those listed as presumptively related to service does not preclude establishing service connection on a direct basis. However, the examiners also cited a lack of evidence of manifestations of the condition during active duty service and at separation from active duty, in addition to the passage of time between service and diagnosis and significant other risk factors. Finally, the Veteran’s own statements undercut a theory of direct service connection to any aspect of his active duty service other than CLCW exposure. Each statement has specifically cited CLCW exposure as the nexus and at no time during the appeal period has the Veteran alleged that his skin cancer is otherwise due to active duty service. The Board finds that the September 2020 VA opinion, in particular, is probative, because it was based on an accurate medical history, discussed the records and literature relied on, and provide an explanation that contains clear conclusions and supporting data. Id. The Veteran believes his basal cell carcinoma is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board gives more probative weight to the September 2020 VA examination and opinion. As the preponderance of the evidence is against the claim, service connection is denied. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.