Citation Nr: 21024436 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-30 754 DATE: April 22, 2021 ORDER Entitlement to service connection for a skin disability manifested by basal cell carcinoma as due to in-service herbicide exposure is granted. Entitlement to service connection for multiple lipomas, claimed as soft tissue sarcoma, to include as due to in-service herbicide exposure is denied. FINDINGS OF FACT 1. The Veteran’s skin disability manifested by basal cell carcinoma is etiologically related to his sun exposure during active service. 2. The most probative evidence of record fails to demonstrate that the Veteran's multiple lipomas, claimed as soft tissue sarcoma, are related to his in-service exposure to herbicides or sun. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a skin disability manifested by basal cell carcinoma have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for multiple lipomas, claimed as soft tissue sarcoma, to include as due to in-service herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1964 to February 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2019. A transcript is of record. This matter was previously remanded by the Board in January 2020, August 2020, and January 2021 for further development. Service Connection 1. Entitlement to service connection for a skin disability manifested by basal cell carcinoma, to include as due to in-service herbicide exposure is granted. Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). If a Veteran was exposed to an herbicide agent during active military service, as is the case here, as the Veteran's service personnel records demonstrate that he was in the Republic of Vietnam from February 1967 to February 1968; a number of diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C.A. § 1116 (a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran's basal cell carcinoma is not such a disease. A presumption of service connection based on exposure to herbicides to include Agent Orange used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,399 (2007). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts that his basal cell carcinoma is etiologically related to his active service. Specifically, he asserts that it is related to either his Agent Orange Exposure and/or his sun exposure while serving in Vietnam. See May 2015 Notice of Disagreement (NOD). The Veteran was diagnosed with basal cell carcinoma in his nose and ear in 2009. See March 2015 VA Examination. Thus, the Veteran has a current disability, basal cell carcinoma, and the first element of service connection has been met. The Veteran states that his basal cell carcinoma is the result of being exposed to both herbicide agents and sun during active duty in Vietnam. As noted above, the Veteran is presumed to have been exposed to herbicide agents as he served in the Republic of Vietnam from February 1967 to February 1968. Additionally, the Veteran asserted that he was exposed to sun during active duty in Vietnam. See May 2015 NOD. The Veteran testified that although he worked as a cook during active duty, he would go outside and go on walks, including to the flight line, when he could. See October 2019 Hearing Transcript. The Board finds the Veteran competent to report on his exposure to the sun during active service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). In light of the Veteran’s presumed exposure to herbicide agents and his competent and credible testimony that he was exposed to the sun during service, the Board finds that the second element of service connection has been met - incurrence of a disease or injury in service. Concerning the third element of service connection, the nexus requirement, VA obtained a medical opinion from a VA examiner to determine whether the Veteran’s basal cell carcinoma is related to Agent Orange Exposure in September 2020. The VA examiner concluded that it was not, stating that she was unable to locate any peer reviewed literature linking Agent Orange to basal cell carcinoma. Additionally, the Veteran has not provided any medical literature or evidence linking basal cell carcinoma to herbicide agents. Therefore, the Board finds that there is not a nexus between the Veteran’s disability and his presumed exposure to herbicide agents during active service in Vietnam. Turning to the Veteran’s assertion that his basal cell carcinoma is related to his sun exposure during active service, VA obtained a medical opinion from a VA examiner in February 2021. The examiner explained that basal cell carcinoma is a type of skin cancer caused by damage to the DNA in basal cells, and that it is believed to be the result of exposure to ultraviolet radiation found in sunlight, commercial tanning lamps, and beds. The VA examiner noted that the Veteran reported that he worked indoors often as a cook in Vietnam, but that he did also get sun exposure during his time there. The VA examiner also noted a March 2015 PTSD VA Examination where the Veteran reported that in warm weather, he spent his free time working outside in his yard, which the examiner stated indicates a history of chronic sun exposure following service. The examiner noted that the Veteran’s basal cell carcinoma was diagnosed 41 years after separation from service, and that it would be thus difficult to state that it was due to his sun exposure in service. The examiner concluded that the Veteran’s basal cell carcinoma was less likely than not related to his in-service sun exposure in Vietnam. The Board finds the February 2021 VA examiner’s opinion inadequate. In this regard, the VA examiner concedes that sun exposure is a known cause of basal cell carcinoma. The VA examiner also concedes that the Veteran was exposed to sun in Vietnam but seems to place a heavier weight on the Veteran’s post-service sun exposure of spending time in his backyard in his free time. As noted above, the Veteran testified that during his time as a chef in Vietnam, “on days when he could, he would get out of the chow hall and go for walks.” See October 2019 Board Hearing Transcript. Indeed, the Veteran offered this testimony to support an unrelated issue, his claimed condition of PTSD, which tends to show that he had no interest in establishing sun exposure for his claim for basal cell carcinoma. Rather, it seems the Veteran’s habit is to spend his free time outside in the sun, both in-service and after service. With the evidence in equipoise, resolving any reasonable doubt in favor of the Veteran, the Board finds that his basal cell carcinoma is related to his in-service sun exposure during his time in Vietnam. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for multiple lipomas, claimed as soft tissue sarcoma, to include as due to in-service herbicide exposure is denied. The Veteran asserts that his multiple lipomas, originally claimed as soft tissue sarcoma, are etiologically related to his active service. Specifically, he asserts that they are either related to his Agent Orange Exposure and/or his sun exposure while serving in Vietnam. See May 2015 NOD. The Veteran was diagnosed with multiple lipomas in 1989. See March 2015 VA Examination. Thus, the Veteran has a current disability, multiple lipomas, and the first element of service connection has been met. The Veteran states that his multiple lipomas are the result of being exposed to both herbicide agents and sun during active duty in Vietnam. As noted above, the Veteran is presumed to have been exposed to herbicide agents as he served in the Republic of Vietnam from February 1967 to February 1968. Additionally, the Veteran asserted that he was exposed to sun during active duty in Vietnam. See May 2015 NOD. The Veteran testified that although he worked as a cook during active duty, he would go outside and go on walks when he could. See October 2019 Hearing Transcript. The Board finds the Veteran competent to report on his exposure to the sun during active service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). In light of the Veteran’s presumed exposure to herbicide agents and his competent and credible testimony that he was exposed to the sun during service, the Board finds that the second element of service connection has been met - incurrence of a disease or injury in service. Concerning the third element of service connection, the nexus requirement, the Veteran reported that he did not recall having a lipoma prior to or during his military service. See March 2015 VA Examination. He also reported that he had no family history of lipomas. See id. In September 2020, VA obtained a medical opinion from a VA examiner to determine whether the Veteran’s multiple lipomas are related to Agent Orange Exposure. The VA examiner concluded that they are not, stating that she was unable to locate any peer reviewed literature linking Agent Orange to multiple lipomas. The examiner also stated that the Veteran’s lipomas were less likely than not incurred in or caused by service. The examiner noted a July 1967 in-service treatment record where the Veteran reported itching on his trunk, where the military doctor noted slight lichenification of his back; the VA examiner concluded that this finding is not consistent with what would be expected with development or diagnosis of lipomas. The Board requested an addendum opinion from the September 2020 VA examiner in order to address whether the Veteran’s in-service sun exposure caused his lipomas. The VA obtained an opinion from the September 2020 examiner in February 2021, where the examiner stated that the exact cause of lipomas is unknown. The VA examiner noted that lipomas tend to run in families, so genetic factors may play a role in their development; the examiner also noted that trauma or alcohol may play a role. The examiner stated that she was unable to locate any peer-reviewed literature to support sun exposure as an etiology to lipomas. The VA examiner thus concluded that the Veteran’s lipomas are less likely than not incurred in or caused by his in-service sun exposure in Vietnam. The Board finds the September 2020/ February 2021 VA examiner’s opinion probative. In this regard, the examiner explained some possible etiologies of lipomas, including genetics, alcohol, or trauma. The VA examiner noted that she was unable to locate any peer-reviewed literature linking lipomas to herbicide agents or sun exposure. Absent probative evidence to the contrary, the Board is not in a position to further question the opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board has considered the Veteran's lay assertions that his multiple lipomas are related to his in-service herbicide and sun exposure and finds such question to be complex in nature. See 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). There is no evidence that the Veteran possesses the requisite skill, training, or experience to determine that his multiple lipomas are related to his in-service herbicide and/or sun exposure. Thus, his lay statements in this regard are not competent and lack probative value in the present appeal. In addition, his lay opinions are outweighed by that of the September 2020/February 2021 VA examiner, as he does not have a similar medical background or expertise. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). In sum, the Veteran has stated that he did not recall having lipomas during service. He was diagnosed with multiple lipomas in 1989, more than 20 years following his separation from service. There is no competent medical evidence linking his multiple lipomas to any incident of service, to include herbicide agents and/or sun exposure. To the contrary, the September 2020/ February 2021 VA examiner reached a contrary conclusion. As the preponderance of the evidence is against the Veteran's claim, benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the Veteran’s claim for service connection for multiple lipomas, to include as due to in-service herbicide exposure, is denied. See 38 C.F.R.§ 3.303. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.