Citation Nr: 21025022 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-18 637 DATE: April 27, 2021 ORDER Entitlement to service connection for soft tissue sarcoma, claimed as secondary to herbicide exposure, is granted. FINDING OF FACT The evidence of record is at least in equipoise with respect to whether the Veteran’s had its onset during military service. CONCLUSION OF LAW The criteria for service connection for soft tissue sarcoma have not been met. 38 U.S.C. § 1101, 1110, 1112, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to May 1971, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in St. Louis, Missouri. In November 2018, the Veteran presented sworn testimony during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s claims file. This claim was previously before the Board in October 2020, at which time it was remanded for additional development. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also 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) (2019). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii) (2017). A veteran is presumed exposed to Agent Orange if he or she had active military, naval, or air service, in the Republic of Vietnam from January 9, 1962 through May 7, 1975, “unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Such service must be either “foot-on-ground” service or service on the inland waterways in the interior of the Republic of Vietnam (“brown water service” versus “blue water service”). See 38 C.F.R. § 3.307(a)(6)(iii) (2019); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008; 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2019). The enumerated diseases include prostate cancer. 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,332 (Dec. 27, 2010); see also Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange, 77 Fed. Reg. 47,924 (Aug. 10, 2012). Despite the presumptive regulations, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Entitlement to service connection for soft tissue sarcoma, claimed as secondary to herbicide exposure At the November 2018 Board hearing, the Veteran testified that his Military Occupation Specialty (MOS) was military police and he served in Vietnam. Initially, the Veteran began seeing a doctor in the 1970s who began removing lesions from his head hands, arms, ears, and back, but no one realized it was cancer. Following service, the Veteran worked as an athletics coach then as a safety director for a company that made whisky barrels; these occupations never exposed him to any chemicals or herbicides. The Veteran did not have a medical opinion from a dermatologist or other physician stating that his skin cancer was related to herbicide exposure. He testified that the main goal of treatment was to get everything corrected, so he never asked for such an opinion. Dr. T. M. submitted correspondence in November 2018 indicated that Agent Orange exposure had not been confirmed as a cause of squamous cell carcinoma, but it was possible that it was a factor. Pursuant to the October 2020 Board remand, a VA medical opinion was submitted in November 2020 and the examiner concluded that the Veteran’s condition was less likely than not related to service. The examiner noted that the Veteran was seen for skin problems during service, including dry and pruritic skin of the neck and back, but the condition existed prior to service. Medical records were negative for findings suggestive of skin cancer or premalignancy during service or in the years immediately following service, thus these in-service skin issues were not related to the later history of squamous cell carcinoma since these were distinctly different conditions with different etiologies. The examiner further noted that the Veteran’s diagnosed squamous cell carcinoma was a common type of skin cancer and commonly occurred in persons with no identified cause. Most of the risk factors for the condition did not apply to the Veteran, but the examiner cited to medical literature to highlight that the Veteran’s risks included his lifetime sunlight exposure and his age. With regard to Agent Orange, the November 2020 examiner noted that there was inconclusive evidence regarding its effect on non-melanoma skin cancer. He cited to medical literature that indicated that veterans with prior exposure to Agent Orange may be at higher risk for certain types of skin cancer. However, the Journal of the American Academy of Dermatology recently reviewed the topic and noted that a recent study showed increased rates of non-melanoma skin cancer in fair-skinned males compared with the general population, but the difference between the two risk populations was incorrectly attributed to Agent Orange. The article concluded that the link to Agent Orange was still inconclusive. The Veteran had significant UV skin exposure over his life and “cumulative sun exposure was the most important environmental cause of squamous cell carcinoma.” This exposure and his age were consistent with the timing and onset of the Veteran’s squamous cell carcinoma. Furthermore, the Veteran did not have a history of early onset or aggressive skin cancers that had greater links to Agent Orange exposure. While the examiner was unable to rule out Agent Orange as a risk factor contributing to the Veteran’s condition, he concluded that Agent Orange was less than a 50 percent risk and therefore the squamous cell carcinoma was less likely than not related to herbicide exposure. The Veteran submitted correspondence in November 2020 and indicated that no dermatologist wanted to say that his skin cancer was related to his service in Vietnam because the condition was not on the list of presumptive diseases caused by Agent Orange and extreme sunshine. However, he was exposed to both; the Veteran stated that he was in 100-degree weather in the back of a Jeep in a flak jacket and steel pot behind a 60-caliber gun running convoy escorts during service. An addendum opinion was submitted in March 2021 and the examiner found that it was less likely as not that the Veteran’s squamous cell carcinoma had its onset in service or was related to herbicide exposure during service. The Veteran had been treated for squamous cell carcinoma on the left forehead in 2017 and 2019, and for basil cell carcinoma of the right ear in 2015. The examiner noted complaints of skin conditions in the Veteran’s service treatment records, but there was no evidence that the Veteran was diagnosed and treated for any skin cancers and/or pre-cancerous skin lesions during service. Skin cancer often developed due to exposure to the sun and, according to medical literature, both squamous cell and basal cell carcinoma were very common skin cancers. Other risk factors for squamous cell carcinoma included advanced age, fair skin complexion, and actinic keratosis, for which the Veteran was diagnosed in 2016. The examiner then noted that the U.S. National Academies of Sciences, Engineering, and Medicine linked exposure to Agent Orange to certain cancers, but squamous cell carcinoma was not found to have sufficient nor limited/suggestive evidence of an association. A retrospective review study concluded, on observational data, that herbicide exposure appeared to be associated with non-melanotic invasive skin cancer, but this was seen in those who actively sprayed Agent Orange and had the presence of chloracne. Another study conducted a systematic review of skin diseases associated with Agent Orange exposure and concluded that there was inconclusive evidence to show an increased risk of skin diseases, including non-melanoma skin cancers, in veterans exposed to Agent Orange. The Board finds the October 2020, November 2020, and March 2021 VA medical opinions to be equivocal in nature. More specifically, while the November 2020 examiner opined that the Veteran’s cancer was not related to service, the examiner’s rationale was based on the fact that most of the risk factors for the condition did not apply to the Veteran. However, the examiner then highlighted the fact that the Veteran’s risks included his “lifetime sunlight exposure and his age,” and further stated that the Veteran had had significant UV skin exposure over his life and “cumulative sun exposure was the most important environmental cause of squamous cell carcinoma.” In this regard, the March 2021 opinion simply stated that skin cancer often developed due to exposure to the sun. Consequently, in light of the Veteran’s credible testimony and statements that he was routinely exposed to extreme sunlight in Vietnam in 100-degree weather in the back of a Jeep in a flak jacket and steel pot behind a 60-caliber gun running convoy escorts. Simply put, although the examiners have ruled out Agent Orange as the likely cause of the Veteran’s skin cancer, they did not specifically comment on the Veteran’s exposure to UV in service, and based on the Veteran’s statements, the Board finds that the examiners’ statements in this regard reflect opinions that can be reasonably interpreted as supporting at least some contribution to the Veteran’s cancer from his in-service UV exposure. Consequently, the Board finds that the evidence is at least in equipoise as to a relationship between the Veteran’s cancer and his period of active service, and that service connection for his soft tissue sarcoma is therefore warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.