Citation Nr: 21024781 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-38 084 DATE: April 26, 2021 ORDER Service connection for a skin disability, to include skin cancer, is denied. FINDING OF FACT The Veteran’s skin disability 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 a skin disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 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 from September 1967 to September 1971. The Veteran has qualifying service in the Republic of Vietnam during the Vietnam Era. His exposure to herbicide agents is presumed. 38 C.F.R. § 3.307(a)(6)(iii). This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In March 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The Board then remanded the claim in October 2019 and in January 2021 for further development. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). During remand status, a February 2021 rating decision granted service connection for tinnitus. The Board finds that the Veteran’s claimed symptoms for his disability are encompassed by the RO’s grant. In this regard, at the December 2019 VA examination, the Veteran reported tinnitus. The Veteran’s tinnitus is rated pursuant to Diagnostic Code 6260, which considers recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. See 38 C.F.R. § 4.87. Thus, as the RO granted in full the benefits sought by the Veteran in this matter, there is no remaining allegation of error of fact or law for appellate consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). The RO, additionally, sent to the Veteran a February 2021 supplemental statement of the case that addressed the remaining above issue on appeal. Entitlement to service connection for a skin disability, to include skin cancer. The Veteran, and his representative, contends that his current skin disability is related to service. In this regard, at the Board hearing, the Veteran testified that he believed that his skin disability stemmed from sun exposure, without the benefit of sun protection, while in Vietnam. See Hearing Transcript at 12 (March 2019). The Veteran additionally stated that he was first treated for skin cancer in 1998. Id. at 8. At the Board hearing, the Veteran also testified to experiencing a fungal infection (claimed as jungle rot) while in Vietnam. He, however, stated that he does not have a current fungal infection that he is being treated for, and a medical professional has not found he has a fungal infection related to his service. Id. at 10-11. Indeed, in this instance, the Veteran’s claim for service connection revolves around skin cancer on various body parts or areas, to include the face, neck, ears, and arms. Id. at 11. The Board concludes that the preponderance of the evidence is against finding that the Veteran’s skin disability was shown as chronic in service; manifested to a compensable degree within the applicable presumptive period; continuity of symptomatology being established; or that the skin disability is otherwise etiologically related to an in-service injury or disease. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 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). Certain chronic diseases, including malignant tumors, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. If a veteran was exposed to herbicide agents during active service, presumptive service connection is warranted for certain specified diseases. 38 C.F.R. §§ 3.307, 3.309. A veteran with service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307. The non-cancerous skin diseases enumerated as presumptively associated with herbicide agent exposure under 38 C.F.R. § 3.309(e) are chloracne, porphyria cutanea tarda, or other acneform diseases consistent with chloracne that become manifested to a degree of 10 percent within one year of exposure. 38 C.F.R. § 3.309(e); 38 C.F.R. § 3.307(a)(6)(ii). Service treatment records (STRs) do not reflect complaints, treatment, symptoms or signs for a chronic skin disability. For instance, separation examination report, dated in September 1971, reflects a normal clinical evaluation of the skin. Additionally, the summary of defects and diagnoses section of the examination report shows that the examining physician found none. After examination, the examining physician concluded that the Veteran was qualified for service separation. Skin problems are first documented in 2013, decades after service discharge. In this regard, post-service medical record, dated in February 2013, reflects that the Veteran reported a personal history of basal cell carcinoma (BCC) approximately six years ago. The treatment record additionally provides that the Veteran lives in Yuma, Arizona, was a police officer for over 30 years, and that he raises 36 goats. Treatment records, dated afterwards, reveal complaints, treatment, and symptoms of various skin disabilities, to include actinic keratosis (also known as solar elastosis) and lentigo. VA examination report, dated in December 2019, reveals that the Veteran was diagnosed with BCC and squamous cell carcinoma (SCC). No other skin related diagnosis was made by the examiner. Medical history, as reported by the Veteran, reveals that he was diagnosed with BCC circa 1998 with multiple excisions thereafter; his last excision was in August 2019; he is doing well status post excisions and MOHS procedure; he uses sunblock regularly and wears clothing and a hat for sun protection. VA medical opinion, dated in January 2021, reflects the conclusion: The Veteran’s skin disability less likely as not began during active service; manifested within one year after discharge from service; was noted during service with continuity of the same symptomatology since service; or is related to an in-service injury, event, or disease, to include sunburns and blistering caused by regular sun exposure in Vietnam. In support of this conclusion, the opinion notes that the Veteran meets the demographic profile of someone who would develop skin cancers (and pre-cancers). In elaborating, the opinion observed that the Veteran lives in Arizona and continues to be exposed to the Arizona sun; he has a multitude of recurrent skin conditions, all or most due to prolonged, and continuous sun exposure, which were alluded to by his dermatologists; and that the usage of sun block and clothing may help reduce some new lesions but cannot eliminate pre-cancer or cancer development. The opinion additionally shows consideration of the Veteran’s lay reports, to include reports related to frequent sun exposure in Vietnam without the benefit of sunscreen; however, the clinician found them of diminished value when he weighed them against the decades intervening service and his first diagnosis of a skin disability, his decades of employment as a police officer in the Arizona sunshine, and his outdoor lifestyle. The opinion, moreover, reflects consideration of relevant medical literature. For example, the opinion observes that [t]he American Cancer society estimates that in 2012, 5.4 million cases of nonmelanoma skin cancers (NMSCs) were diagnosed in 3.3 million people, of which approximately 8 in 10 cases would have been BCC. BCC is particularly common in white populations; it is very uncommon in darker-skinned populations. In white populations in the United States, the incidence of BCC has increased by more than 10 percent per year, and the lifetime risk of developing a BCC is 30 percent. The incidence in men is 30 percent higher than in women. The incidence of BCC increases with age; persons aged 55 to 75 have about a 100-fold higher incidence of BCC than those younger than 20. Given the surrounding facts and circumstances of the Veteran, the examiner found that the scenario applied to him. Thus, the opinion concluded that: based on [the] Veteran’s [military occupational specialty] in military service, timeline, extent of any exposure known to cause NMSC, his demographic profile, life-style, and a variety of skin lesions, it is the opinion of this Examiner that it is less likely as not related to an in-service injury, event, or disease, including presumed exposure to herbicide agents, and sun exposure in Vietnam. The Board finds the January 2021 VA medical opinion of high probative value. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the his or her knowledge and skill in analyzing the data, and the medical conclusion reached. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a medical professional provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the Board finds the VA medical opinion of high probative value for the following reasons: The medical opinion is based on sufficient facts and data (e.g., the Veteran’s lay statements, relevant medical literature, in-service and post-service medical records); the medical opinion is the product of reliable principles and methods; and the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez, 22 Vet. App. at 302 (citing to Federal Rules of Evidence on expert witnesses). Further, the VA medical opinion contains clear conclusions with supporting data, and also a reasoned medical explanation connecting the two. Id. at 301. In this instance, the clinician, in forming the conclusions, considered other factors that may have caused or contributed to the Veteran’s skin disability, to include his sex, age, and post-service sun exposure. In regard to in-service sun exposure, the opinion notes that the Veteran's time in Vietnam was, in relative terms, short (less than 13 months) and in medical terms, his in-service sun exposure is “not considered prolonged exposure.” The opinion, next, fully explains why the clinician disagreed with the Veteran’s theory of causation and provided a discussion of the relevant and significant medical history, clinical findings, medical knowledge and literature that support the negative medical opinion and conclusion. This is exemplified by the comprehensiveness of the medical opinion, detailing the Veteran’s contention that his disability stems from in-service sun exposure. The opinion, also, reveals a discussion between the risk factors in the development of BCC as opposed to SCC. In this regard, the opinion notes, among other things, that “BCC is more frequent than SCC; both more common in skin types 1 and 2 (like the Veteran’s), and both caused by prolonged sun exposure.” The Board, thus, finds the VA medical opinion of high probative value as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. The Board recognizes that the Veteran has submitted several copies of an undated private medical opinion; it was last received by the Board in November 2020. The opinion, however, as explained in the October 2019 Board remand, is inadequate to support the claim. See BVA Decision (October 2019). Specifically, the opinion was found to be inadequate because it does not include a reasoned medical explanation connecting the medical findings to the conclusion. Nieves-Rodriguez, 22 Vet. App. at 30 (noting that “a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two”). The opinion, moreover, contains generic statements that military personnel are often exposed to high levels of ultraviolent radiation, however, it makes no attempt to explain why this finding supports the conclusion in the Veteran’s case. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (doctor's generic statement that chest trauma can be linked to restrictive lung disease insufficient to satisfy medical evidence of nexus requirement). Lastly, the private medical opinion references medical literature showing that service members have an increased risk of developing skin cancer, to include BCC and SCC, however, the opinion does not provide or reflect consideration of facts specific to the Veteran vis-à-vis the medical literature that was reviewed. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018) (stating that a medical rationale based solely on general medical literature without discussing the specific facts pertaining to a veteran’s condition or individual circumstances is inadequate). Given the above, the Board finds the private medical opinion is inadequate and lacking probative value to support the claim. Nevertheless, even if the Board was to accept the private medical opinion as adequate, it finds the January 2021 VA medical opinion is of higher probative weight. The VA medical opinion is more probative because the medical professional is shown, through the comprehensiveness and detailedness of the medical opinion, to have possessed the necessary education, training, and expertise to provide the requested opinion. Additionally, the opinion is also shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran’s current skin disability did not have its onset in, or is related to, service, to include in-service sun exposure. The opinion, moreover, reflects a reasoned medical explanation with consideration of lay statements, medical literature, and relevant in-service and post-service medical records. The Board accepts that the Veteran is competent to report on his observable symptomatology. However, the Board finds that he is not competent to opine on the etiology of his symptoms given that the condition was not shown as chronic in service and because he lacks the requisite medical expertise to formulate a medical opinion on whether the disability is related to an in-service injury or disease, to include as due to in-service sun exposure. In sum, this is a complex medical determination beyond the ken laypersons that cannot be answered based on observation or analysis of a layperson. Indeed, this is an intricate matter that requires an understanding of various bodily systems, to include the integumentary system (i.e. organ system consisting of the skin, hair, nails, and exocrine glands). Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran’s statements of record cannot be accepted as competent evidence sufficient to establish service connection for a skin disability and, thus, his medical opinion in this matter has no probative value. Given the above, the competent, credible evidence of record does not reflect that the Veteran’s skin disability was shown as chronic in service; manifested to a compensable degree within the applicable presumptive period; continuity of symptomatology being established; or that the skin disability is otherwise etiologically related to an in-service injury or disease. Further, the competent, credible evidence of record does not show that the Veteran had at any time during, or approximate to the pendency of this appeal, chloracne, porphyria cutanea tarda, or any other acneform disease consistent with chloracne that manifested to a degree of 10 percent within one year of exposure. See 38 C.F.R. § 3.309(e). The Board assigns greater probative value to the Veteran’s in-service and post-service medical records, which contain no objective finding for a chronic skin disability until decades after separation from service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). The Board additionally assigns greater probative value to the January 2021 VA medical opinion than to the Veteran’s uncorroborated medical opinion and private medical opinion because, as discussed above, the VA medical opinion was prepared by a trained medical professional, reflects a review of the claims file and cites to specific information in the claims file. Moreover, the opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. It is clear from the VA opinion that the clinician reviewed the Veteran’s claims file and considered the subjective complaints of the Veteran. Also, the VA medical opinion is supported by a rationale that the Board can use to weigh against the other evidence of record. On balance, the weight of the evidence is against the claim. (Continued on the next page)   Accordingly, the claim is denied. There is no doubt to resolve. See 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.