Citation Nr: 21024045 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-45 403 DATE: April 21, 2021 ORDER Entitlement to service connection for a skin condition (claimed as basal cell carcinoma and chloracne), to include as secondary to herbicide agent exposure, is denied. FINDING OF FACT The Veteran’s skin condition first manifested many years after his separation from service and is not related to his service or any incident therein, including Agent Orange exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin condition have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1966 to July 1968, with service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).    In April 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record.    The Board remanded this claim in May 2019 and December 2020 to the agency of original jurisdiction (AOJ) for further development.  The Board’s remand directives have been substantially completed.  See Stegall v. West, 11 Vet. App. 268 (1998).   The Veteran’s appeal has been advanced on the docket.  38 U.S.C. § 7107(a)(2).   Entitlement to service connection for a skin condition (claimed as basal cell carcinoma and chloracne), to include as secondary to herbicide agent exposure. The Veteran asserts that his skin condition is related to herbicide agent exposure during his military service in Vietnam.  For the reasons that follow, the Board finds that the Veteran’s service connection claim must be denied.  Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may be established for specified chronic diseases manifesting to a compensable degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a).  In addition, service connection may be established on a presumptive basis for certain diseases resulting from exposure to herbicide agents, such as Agent Orange, if a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, absent affirmative evidence to establish that the Veteran was not exposed to such herbicide agent during that service.  See 38 C.F.R. § 3.307(a)(6)(iii).  If a Veteran is presumably exposed to an herbicide agent, then there is a presumption of service connection for the specified enumerated diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a) and 3.309(e).  Chloracne or acneform disease consistent with chloracne shall be service connected if it became manifest to degree of 10 percent or more within a year after the date on which the Veteran was exposed to an herbicide agent. 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).    First, the Board acknowledges that the present disability element for service connection has been established. The evidence of record shows that the Veteran has been diagnosed with or has had residuals of basal cell carcinoma, squamous cell carcinoma and lipoma, during the appeal period. See May 2015, May 2019, and October 2019 private treatment records. Next, the Board notes that service connection is not warranted on a presumptive basis. The Veteran is presumed to have been exposed to herbicide agents as his military personnel records show that he served in the Republic of Vietnam. See DD Form 214. However, the provisions of 38 C.F.R. § 3.309(e) are limited to certain specifically listed conditions, such as chloracne or acneform disease consistent with chloracne, and do not apply to other skin conditions. Since none of the Veteran’s skin diagnoses are specifically listed, service connection on a presumptive basis in this regard is not warranted. Although service connection on a presumptive basis cannot be granted, service connection on a direct basis may still be established. Combee v. Brown, 34 F.3d 1039 (Fed.Cir.1994) (when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis). As noted, diagnoses of skin disorders are of record and herbicide exposure has been conceded. However, the probative and persuasive evidence fails to show that the Veteran’s skin disorders began in service or are in any way related to service or any event of service. Specifically, the Veteran’s service treatment records (STRs) contain no mention of any skin disorder symptoms or diagnosis during service other than July 1967 treatment note for heat rash on legs. In addition, on the Veteran’s June 1968 separation Report of Medical Examination form, the medical provider checked “Normal” for “Skin, Lymphatics.” Accordingly, in-service onset has not been established. Further, the Veteran underwent a VA examination for his skin condition in January 2020. The Veteran reported having multiple soft tissue masses and a biopsy was consistent with lipoma. The examiner noted that the Veteran is currently not receiving treatment for chloracne and his medical records are devoid of any evidence of a past diagnosis and treatment for chloracne, other than the Veteran’s self-reported history. The examiner opined that the claimed skin condition was less likely than not incurred in or caused by any in-service injury, event or illness. The examiner noted that the Veteran’s lipomas were less likely than not due to the herbicide agent exposure as per the review of medical literature. The RO obtained an addendum opinion in July 2020. In the July 2020 addendum report, the examiner explained that the medical literature review was done in Up to Date, and according to that review, herbicide agents are not listed as a risk factor for lipoma. Pursuant to December 2020 Board’s remand directives, a new addendum VA opinion was obtained in January 2021 to address a rationale regarding the Veteran’s basal cell carcinoma, squamous cell carcinoma and the Veteran’s individual circumstances for the likely etiology of his claimed condition. The January 2021 VA addendum examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that there is no evidence of lipomas, basal cell carcinoma or squamous cell carcinoma in service. The examiner emphasized that there is no evidence of any of these conditions until decades post-service. The examiner added that a review of the current medical literature, including Up to Date, does not establish a link between Agent Orange and the Veteran’s skin condition. The examiner further explained that skin carcinomas are linked to chronic, long-term sun exposure, while lipomas have a familiar connection and have not been linked to exposures of any kind. Based on the foregoing, the examiner concluded that it is less likely than not that the Veteran’s lipomas, basal cell carcinoma and squamous cell carcinoma are due to or incurred in event in service, to include exposure to Agent Orange. The examiner noted an opinion confidence level of 99 percent. The Board accords great probative weight to the January 2021 VA addendum opinion as the examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed.  The examiner also offered a conclusion with supporting data as well as reasoned medical explanations connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The Board also finds that the medical opinion is consistent with other objective evidence of record. Thus, the Board finds VA opinion probative to address the Veteran’s claim.   The evidence of record also includes a private opinion from the Veteran’s treating physician. In an August 2016 opinion, Dr. K.M. opined that the Veteran’s chloracne/lipoma conditions are more likely than not caused or derived as due to his time served in the military, to include exposure to Agent Orange. Dr. K.M. noted that the Veteran has been suffering from lipomas for years and chloracne/lipoma is one of the conditions listed on the presumptive list of disabilities based upon exposure to Agent Orange. Dr. K.M. also noted that the Veteran has no family history of chloracne/lipoma, making herbicide agent exposure the likely cause of his condition. See also March 30, 2021 Written Brief Presentation. As noted, there is no evidence of record showing that the Veteran is or has ever been diagnosed with chloracne. In addition, lipoma is not specifically listed under diseases subject to the Agent Orange exposure presumption. The Board further observes that while Dr. K.M. noted that the Veteran has no family history of chloracne or lipoma, she did not discuss other environmental factors, such as prolonged sun exposure, or the fact that the Veteran’s skin condition first manifested many years after his separation from service. Dr. K.M.’s opinion also does not appear to be based on any scientific research and/or literature. As such, the Board affords Dr. K.M.’s August 2016 opinion little probative weight. The Veteran’s post-service medical records are consistent with the January 2021 VA addendum opinion. In fact, the Veteran’s treatment records show that his skin condition is related to sun exposure. Specifically, an October 2014 private treatment note shows surgical removal of basal cell carcinoma. Follow-up January, April and May 2015 treatment notes show that sun protection was discussed with the Veteran. A June 2015 private treatment note shows a surgical pathology report with a lipoma diagnosis, which is benign in nature. A September 2019 private treatment note shows that the medical provider again discussed the importance of sun protection with the Veteran. In light of the foregoing, the Board finds that service connection for skin condition is not warranted.  In reaching this decision, the Board has considered the arguments of the Veteran and his representative in support of his claim.  The Board acknowledges that the Veteran is competent, as a lay person, to attest to factual matters of which he has first-hand knowledge.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he is not competent to offer an opinion to an intricate medical question, including a diagnosis of a complex condition or a nexus between a diagnosed disability and his military service. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).  The determination that the Veteran has a diagnosis of a skin condition as a result of his military service involves examination, laboratory testing, and knowledge of an impact of certain activities of the disease. Further, to the extent that the Veteran is alleging that his skin condition is a result of exposure an herbicide agent during his service in Vietnam, the Board finds that he is not competent to make this assertion as this requires a scientific determination and generally must be established by scientific findings and expert opinion. Similarly, the Board acknowledges that the Veteran’s VA medical records document the Veteran’s history of present illness (HPI), which notes that he was exposed to Agent Orange during service and suggests his skin disorder is related to that exposure. See April 2015 private treatment record. Nonetheless, to the extent that the report links the Veteran’s skin disorder to service, the Board finds these records to be less probative. As noted, the VA examiner’s January 2021 opinion is highly probative, as it was based on a complete review of the record and supporting rationale for the conclusion reached was also provided. The Board also considered whether service connection is warranted based on the continuity of symptomatology framework.  38 C.F.R. § 3.303(b). Specifically, at the April 2019 Board hearing, the Veteran testified that he started noticing lumps that were painful to touch in the years following his return from service in Vietnam. As noted, even though the Veteran is competent to report his symptoms, he is not competent to provide a nexus opinion in this case. See Jandreau, supra. In addition, the evidence contemporaneous to the Veteran’s service and following active service is more reliable as to the state of his health. In this regard, the Veteran’s STRs do not reflect any diagnosis of a skin condition. While his STRs show treatment for a heat rash, his separation examination shows no abnormalities or diagnosis related to his skin. This contemporaneous evidence as to his then-existing physical condition, including his medical examination report at discharge (as opposed to his later statements of memory or belief to prove the fact remembered or believed) is particularly probative. See Fed. R. Evid. 803(3); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (providing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate).  Further, as noted, the evidence of record shows that his conditions became manifest years after service and medical professionals advised the Veteran of the importance of sun protection for his skin condition. As such, the Board finds that the objective, persuasive evidence substantiates the January 2021 VA addendum opinion. Accordingly, even though the Board remains sympathetic to the Veteran’s assertions, the evidence of record does not support his continuity of symptomatology statements.   In sum, upon review of all of the evidence of record, the Board finds that entitlement to service connection for a skin condition is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable.  See 38 U.S.C. § 5107 (b); Gilbert, supra. Thus, the claim is denied.   C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, 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.