Citation Nr: 21024609 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-15 462A DATE: April 23, 2021 ORDER Entitlement to service connection for skin cancer is granted. REMANDED Entitlement to service connection for a left knee disability, to include degenerative joint disease, status post medial meniscectomy, is remanded. Entitlement to service connection for a right knee disability, including arthritis, is remanded. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran’s skin cancer is related to his active service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for skin cancer are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.303(b), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1965 to October 1968, including service in Vietnam. His personnel records reflect that he served in combat and earned a parachutist badge. These matters were remanded by the Board in September 2018 for further development. The development instructed with regard to the claim for service connection for skin cancer has been completed, and the issue will be adjudicated by the Board herein. However, the development instructed with regard to the claims for service connection for left and right knee disabilities requires additional development to ensure a complete record before these issues can be adjudicated. The September 2018 Board remand is incorporated herein by reference. Service Connection – Skin Cancer The Veteran contends that his diagnosed basal cell and squamous cell carcinomas are related to his active service, to include his sun exposure and herbicide exposure in Vietnam. The Board finds the evidence is in relative equipoise as to weather the Veteran’s skin cancer began during, or was caused by, his active service—and that, therefore, service connection for this disability is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptoms after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). An August 2012 VA examination confirmed the Veteran’s diagnosed basal cell and squamous cell carcinomas from 1992 but did not include an etiology opinion. An August 2012 letter from his private treatment provider suggests that the Veteran’s fair skin and numerous sunburns during his service in Vietnam, along with his exposure to herbicide agents, were related to his development of skin cancer on more than 20 occasions in the previous 20 years. Indeed, the Veteran has argued that he experienced repeated and unprotected sun exposure during service in Vietnam. He has provided photographs to show his exposure. In an October 2019 VA medical opinion, the examiner stated that the claimed condition is less likely than not incurred in, or caused by the claimed in-service injury, event, or illness. The Veteran has known recurrent basal cell and squamous cell carcinoma, for which the most common cause is sun exposure. VA has recognized certain cancers and other health problems as presumptive diseases associated with exposure to Agent Orange or other herbicides during military service. His type of cancer is not one of them. Military service requires protective gear and uniform that covers almost most of service members’ entire body at all times. This protection is a factor in developing skin cancer. In an addendum opinion in October 2020, the examiner opined that the claimed condition was at least as likely as not incurred while the Veteran was exposed while deployed in Vietnam. The examiner explained that use of defoliants has been associated with exposure to organochlorine which is a cause of cutaneous and systemic toxicity. While the Institute of Medicine has not comprehensively assessed the long-term health effects of skin diseases in Vietnam veterans, patients with a diagnosis of soft-tissue sarcomas, as well as other conditions, should be screened for Vietnam service. The examiner went on to stated that inconclusive evidence exists for an increased risk of other skin diseases in Vietnam veterans exposed to Agent Orange including skin cancers. Initially, the Board notes that the October 2019 medical examination and and October 2020 opinion failed to address the positive evidence of record, including the August 2012 letter, and specifically, the Veteran’s statements and photographs of record clearly illustrating that he was not protected from the sun at all times during his service in Vietnam. Further, the Board notes that both the August 2012 letter and the October 2020 medical opinion, while not specifically stating that the Veteran’s skin cancers began during his active service or that herbicide exposure contributed to his cancer, suggest that the origin of his cancer is, at least, unknown, and therefore at least as likely as not related to his active service. Taken in a light most favorable to the Veteran, the evidence is therefore in relative equipoise. When there is a balance of positive and negative evidence, service connection is warranted. In sum, the evidence is at least evenly balanced as to whether the Veteran’s basal cell and squamous cell carcinomas onset in his service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for skin cancer is warranted. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). REASONS FOR REMAND Service connection for left knee and right knee disabilities The Veteran contends that this left and right knee conditions are related to his active service. The Board finds the evidence of record is insufficient to adjudicate this claim, and an additional remand is necessary. Specifically, a correction to his discharge documents indicates that he earned the parachutist badge. Service medical records show that he sustained a left leg injury during service. In a January 2016 VA medical opinion, the examiner found that the Veteran’s left knee condition was less likely than not incurred in, or caused by, the claimed in service injury. Service medical records reflect an injury to his left leg. According to his separation physical, his left leg was no longer symptomatic. He reported an arthroscopic surgery of the knee in 1975, but there are no perioperative records available for review. The earliest record of treatment is 2012, more than 40 years after discharge. The examiner went on to explain, however, that, if records from his 1975 surgery or treatment of any knee condition prior to 2012 could be obtained for review, this opinion may be altered. Based on that opinion, and the lack of medical documentation prior to 2012, the Board remanded these issues in order for VA to request records pertaining to the Veteran’s 1975 knee surgery. Records were requested, but none were found. No other medical records were requested to show a history of treatment. Additionally, the Board finds that, despite the lack of availability of perioperative records, the January 2016 medical opinion failed to address whether the Veteran’s current bilateral knee degenerative changes are consistent with both the injury incurred during service and/or with his experience as a parachutist during service. Instead, the opinion simply uses the lack of evidence of records prior to 2012 to rationalize a negative nexus. Further, there is no consideration or discussion as to whether the Veteran’s bilateral knee conditions are related to, aggravated by, or caused by his service-connected low back disability – which stems from the same injury as the Veteran’s in-service left knee injury. No opinion has been provided concerning the right knee, and the September 2018 Board remand determined that the left and right knee conditions are inextricably intertwined, and therefore, the right knee claim must be remanded as well. Regretfully, these failings require an additional remand for further development before the Board can adjudicate the Veteran’s claims for service connection for left and right knee disabilities. These matters are REMANDED for the following: 1. Obtain any outstanding VA medical records for this Veteran, specifically for knee treatment for the period prior to 2012. Contact the Veteran to determine whether there are any additional relevant private treatment records and obtain any necessary authorizations for such records. 2. Then, forward the claims file, including a copy of this Remand to an appropriate examiner for an adequate medical opinion as to the etiology of the Veteran’s left and right knee conditions; the Veteran may be recalled for an examination if necessary. The examiner must opine as to whether the Veteran’s left and right knee disabilities, separately: (a.) are as likely as not (50 % probability or better) related to his active service; (b.) are consistent with his in-service injury, and/or multiple parachute landings; or (c.) were caused or aggravated (worsened) by the Veteran’s service-connected degenerative arthritis of his lumbar spine and/or by the service-connected radiculopathy of each lower extremity. A complete rationale for all opinions expressed must be provided. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee 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.