Citation Nr: 21027264 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-58 630A DATE: May 5, 2021 ORDER Entitlement to service connection for skin cancer (squamous cell carcinoma), to include residuals thereof, is denied. FINDINGS OF FACT 1. A skin cancer disability was not shown in service, did not manifest to a compensable degree within one year of separating from service, and is not otherwise related to service, to include herbicide agent exposure. 2. The preponderance of the evidence of record is against finding that the Veteran has had a skin cancer disability, to include residuals thereof, at any time during the appeal period. CONCLUSION OF LAW The criteria for service connection for skin cancer (squamous cell carcinoma), to include residuals thereof, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1955 to October 1976. This matter comes to the Board of Veterans' Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In December 2013, the AOJ issued a rating decision that denied the Veteran's claim for service connection for skin cancer. The Veteran timely disagreed in a December 2013 Notice of Disagreement (NOD) and perfected his appeal in a December 2016 VA Form 9. In May 2019, the Board remanded the appeal in order for the AOJ to provide a disability examination and medical opinion. Then in December 2020, the AOJ conducted a VA disability examination and re-adjudicated the Veteran's claim. His claim for service connection for skin cancer was denied. In March 2021, the Veteran's case was returned to the Board. The Board observes that service connection for diabetes and prostate cancer was granted in the May 2019 Board decision that remanded the skin cancer claim. The AOJ issued a rating decision in May 2020 implementing the Board decision and assigned an initial 10 percent rating for the Veteran's diabetes and a noncompensable rating for his prostate cancer. In August 2020, the AOJ issued a rating decision awarding an increased rating of 100 percent for his prostate cancer and granted service connection for erectile dysfunction with assignment of a noncompensable disability rating. While a January 2021 supplemental statement of the case (SSOC) was issued that addressed claims for higher ratings for diabetes and erectile dysfunction, a review of the record does not show that the Veteran filed an NOD to the initial disability evaluations assigned. Therefore, these issues are not before the Board at this time. 1. Entitlement to service connection for skin cancer (squamous cell carcinoma), to include residuals thereof. The Veteran contends his diagnosed skin cancer is related to his service, to include due to herbicide agent exposure. See March 2021 Appellate Brief at 2. The question for the Board is whether the Veteran has had a skin cancer disability or residuals thereof at any time during the appeal period. For the reasons discussed below, the Board concludes the evidence does not support finding that he has had a skin cancer disability, to include residuals thereof, at any time during the appeal period. Entitlement to service connection generally requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (2007). Another way a Veteran can establish service connection is by satisfying the test for disability compensation for chronic diseases set forth in 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331, 1334 (2013). To satisfy that test the Veteran must (1) have a chronic disease listed under § 3.309(a) and (2) that disease must have been "shown in service." Id. at 1335. As to (1), "tumors, malignant, or of the brain or spinal cord or peripheral nerves "are listed under § 3.309(a). The Veteran's diagnosed squamous cell carcinoma is a malignant tumor and thus falls within § 3.309(a). As to (2), to be "shown in service" requires a combination of manifestations sufficient to identify the disease entity and "sufficient observation to establish chronicity at the time." Walker, 708 F.3d at 1335. Also, Veterans who are exposed to herbicide agents may obtain service connection for certain diseases without demonstrating a causal connection or nexus. 38 C.F.R. § 3.307(a)(6). An "herbicide agent" means a chemical in an herbicide used in support of the United States and in the Republic of Vietnam from January 9, 1962, to May 7, 1975, specifically: 2, 4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(6)(i). If a Veteran was exposed to certain herbicide agents during active military, naval, or air service, and the Veteran has certain specified diseases, he or she will be presumptively service connected, if the requirements of 38 C.F.R. § 3.307(a) are met. 38 C.F.R. § 3.309(e). Skin cancer, specifically squamous cell carcinoma, is not listed among the diseases associated with certain herbicide agents under § 3.309(e). In order to prevail on a claim for benefits, the Veteran need only demonstrate there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). This is because the Veteran is entitled to the "benefit of the doubt" when the evidence is approximately balanced. Id. at 53. Beginning with the Veteran's service, at entrance he completed a questionnaire that asked if he observed "tumor, growths, cyst, cancer." He checked "no." He checked "yes" to other symptoms, like ear and nose trouble. See July 26, 1955, Report of Medical History at 1. The military doctor who evaluated him at that time did not note signs or symptoms of skin cancer. See July 26, 1955, Report of Medical Examination. The record reflects that, at least part of the Veteran's service included duty assignments to Royal Thai Air Base (RTAB) Korat. There, he worked around the airfield where he inspected weapons that were attached to military planes, like missiles. Also, he lived near the perimeter of the airfield. The Board notes it has previously found he was exposed to herbicide agents while serving at RTAB Korat. See May 2019 Board Decision at 4. Before the Veteran retired, he underwent a separation examination on November 26, 1975. Again, he completed a questionnaire that asked if he observed "tumor, growths, cyst, cancer." He checked "no." He checked "yes" to other symptoms, like hearing loss. See Report of Medical History at 1. Also, the military doctor who evaluated him at that time did not note any signs or symptoms of skin cancer. See July 26, 1975, Report of Medical Examination. The Veteran's VA medical center (VAMC) records that post-date his separation from service do not note any signs or symptoms of skin cancer. The records showing signs or symptoms are found in private medical records that have been incorporated into the Veteran's file. When the VA asked for those records, it specifically asked for records for "skin cancer: Starting [May 21, 2010], Ending [September 30, 2012]." See November 2012 VA Records Request. The private medical provider responded with records from May 2010 through August 2012. They show that, on May 21, 2010, a 1.5 centimeter (less than 1 inch) skin lesion was removed from the Veteran's right palm. A record of diagnostic testing on the lesion notes squamous cell carcinoma. See May 28, 2010, Pathology Report. The rest of the records do not indicate that the skin cancer returned after it was removed. On December 3, 2020, the Veteran underwent a VA disability examination for his skin and prostate cancers. During the evaluation for the Veteran's skin cancer, the examiner noted two particular items of evidence: (1) a May 28, 2010, pathology report that indicated a tumor was removed from the Veteran's right palm and found to be squamous cell carcinoma, keratoacanthomatous type; and (2) a letter from a medical provider that notes "skin cancer starting [May 21, 2010] and ending [September 30, 2012]." See December 2020 VA Medical Opinion at 1. On physical examination, the examiner noted squamous cell carcinoma that, at the time of the examination, did not include any visible characteristic lesions that affected the Veteran's total body area. The examiner also noted the Veteran does not have a current skin disorder. She explained that the Veteran's skin cancer consisted of a lesion on the Veteran's left palm that was removed in 2012, without any complications since its removal. She also noted it resolved. See December 2020 VA DBQ at 2, 3, 8, 10-11, 16. Then the examiner provided two reasons that the Veteran's skin cancer is less likely than not related to his service. First, the examiner concluded there is not enough evidence to conclude his skin cancer is related to herbicide agent exposure. She explained that there is ongoing research into the likelihood of a link between them, but the VA has not recognized one yet. In support of her conclusion, she cited to a 2014 web article that discusses some of the current research and the need for more research on the issue. Second, the examiner explained that the Veteran no longer has a skin disorder. The examiner recognized the presence of skin cancer in 2010 but also noted the cancer was removed two years later (in 2012). She explained that the Veteran has not had a skin disorder since it was removed. See January 2021 VA Medica Opinion at 2; AO Exposure Increases Skin Cancer Risk in Vietnam Veterans, https://www.medicalnewstoday.com/articles/272046 (last visited April 26, 2021). A. Entitlement to service connection for skin cancer, to include residuals thereof, on a direct basis. Turning to the Veteran's claim for disability compensation, the first issue is whether the Veteran has had a skin cancer disability, or residuals thereof, at any time during the appeal period. Because this is the first time the Veteran's has filed a skin cancer claim the appeal period began on September 6, 2012. The December 2020 VA DBQ and January 2021 medical opinion that followed weigh strongly against finding the Veteran had skin cancer, or residuals thereof, at any time across the appeal period. The examiner who prepared it considered the evidence of record as well as her personal examination of the site of the skin cancer removal. So, the Board finds she was informed of the relevant details of the Veteran's past medical history when rendering her opinion. Nievez-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2006). The Board recognizes that, even though the Veteran's skin disorder manifested on the right palm, the examiner discussed the left palm as the site of the skin disorder lesion. But, in her medical opinion, she refers to medical records showing the disorder was on the right palm. So, the Board finds that, when the medical opinion and underlying VA DBQ are read as a whole, she had the proper site of the skin cancer tumor in mind when preparing her opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Although the examiner recognized the Veteran had skin cancer that was removed, she did not find the removal caused residual scarring or other physical complication. See December 2020 VA DBQ at 11, 14. So the evidence does not support finding the Veteran had residuals of a skin cancer disability at any time during the appeal period. Also, the examiner concluded the Veteran's skin cancer was no longer disabling after it was removed. See January 2021 Medical Opinion at 2; January 2021 VA DBQ at 3. She explained the medical records that post-date its removal do not show the recurrence of his skin cancer. The examiner is qualified to evaluate the evidence and opine that it is no longer a disability. So, the Board finds her explanation sufficient to evaluate whether the data she relied on connects to her conclusion. Nievez-Rodriguez, 22 Vet. App. at 301. As a result, the Board assigned the opinion significant weight. Although the examiner noted the Veteran's skin cancer was removed in 2012, the Board notes it was actually removed on May 21, 2010. See December 2020 VA DBQ at 3. The record reflects a 1.5 centimeter (less than 1 inch) tumor was removed on that date and no other skin cancer surgeries followed. See May 21, 2010, Private Medical Record; May 28, 2010, Pathology Report. Considering the examiner conducted a disability examination of the Veteran's skin and prostate cancers on the same day, and the Veteran underwent prostate cancer surgery in 2012, it is likely the examiner mistakenly entered data gathered during the Veteran's prostate cancer examination into the DBQ for his skin cancer claim. See VA DBQ Skin Conditions at 3; December 2020 VA DBQ Prostate Cancer at 2. Because the examiner concluded the Veteran's skin cancer resolved after it was removed, the Board finds it resolved on May 21, 2010. Even though she erred when noting the date of its removal, it is apparent to the Board she found it resolved after the cancer was removed. The removal itself is a surgical procedure which results in the same outcome whether it was performed on May 21, 2010, or in 2012. So, the date it was conducted is only relevant to determining when the Veteran's skin cancer was no longer disabling. The Veteran filed his claim for service connection in September 2013. Thus, even if the Veteran had skin cancer in 2012, the evidence shows that the disability resolved prior to the date of claim and any error on the part of the examiner in recording the date of removal harmless error. The Board recognizes the Veteran has reported he had skin cancer; however, his lay assertions are not competent evidence that could be considered on this issue. Although the Veteran is competent to report observations like growths on his skin, he has not asserted he has observed any during the appeal period. Layno v. Brown, 6 Vet. App. 465, 467-70 (1994). Even if he had, diagnosing skin cancer is a medical question he is not qualified to make. The record does not show that he has the necessary medical training or experience to diagnose a skin disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). In this case, the evidence weighs against finding he had a skin cancer disability or residuals thereof during the appeal period. The Veteran's lay statements are not competent to diagnose the presence of skin cancer. In contrast, the VA examiner who prepared the December 2020 VA DBQ and January 2021 medical opinion is competent to render such an opinion. She concluded it was no longer a disability after it was removed. The Board gives this opinion great probative weight as it rendered by a health care profession who is competent to render etiologically opinions. The examiner considered the Veteran's medical history and conducted a contemporaneous physical examination of the Veteran. Because the weight of the evidence does not support finding the Veteran had a skin cancer disability during the appeal period, he has not established he has had a current disability. Without a current disability he is unable to establish entitlement to service connection under 38 C.F.R. §§ 3.303. Holton v. Shinseki, 557 F.3d 1363, 1366-68 (Fed. Cir. 2009). The Board notes that even if the record reflected the Veteran had a skin cancer disability during the appeal period, the evidence weighs against a finding an in-service incurrence. The Veteran's entrance and separation examinations weigh against finding a skin cancer disability manifested during service. During both examinations, he was asked if he observed symptoms of a skin cancer disability, which he repeatedly checked "no." Considering he reported other symptoms like ear trouble and hearing loss, the Board finds it likely that he would have reported noticeable growths on his skin as well. See July 26, 1955, and November 26, 1975, Reports of Medical History at 2. Considering the military doctors who evaluated him at the time did not note anything either, the Board finds his examination reports credible. See July 26, 1955, and November 26, 1975, Report of Medical Examinations. The January 2021 medical opinion is medical evidence that supports the findings in the Veteran's entrance and separation examinations. The examiner is qualified to opine on whether the evidence indicates the presence of a skin cancer disability during service. Here, she reviewed the Veteran's records and noted his skin cancer disability did not manifest until many years after service. See VA Medical Opinion at 2. Since her opinion is consistent with the reports and findings in his entrance and separation examinations, it was assigned significant weight against finding an in-service incurrence. In this case, the evidence weighs against finding a skin cancer disability was incurred in or noted during service. The Veteran has not asserted he observed symptoms while in service, which is consistent with his reports during service. Considering his reports are supported by medical professionals who evaluated him at the time as well as the VA examiner who evaluated his STRs, the evidence is not approximately balanced on the issue of an in-service incurrence. So, doubt on the issue could not be resolved in the Veteran's favor. Gilbert, 1 Vet. App. at 54. The Board recognizes that even though the evidence of record does not support an in-service incurrence, the Veteran was exposed to herbicide agents during service. See May 2019 Board Decision at 4. That finding extends to his skin cancer claim. Also, herbicide agent exposure constitutes an in-service injury. The Board notes that even if the record reflected the Veteran had a skin cancer disability during the appeal period, the evidence weighs against a finding a nexus between his skin cancer and herbicide agent exposure. The Veteran has not alleged his skin cancer disability manifested in or within one year after service. Even if it had, identifying a skin disorder is a medical question he is not qualified to make. So, the Veteran's lay assertions would not have been competent evidence that could be considered on this issue. Jandreau, 492 F.3d at 1377 (2007). The January 2021 medical opinion is medical evidence that weighs against finding his skin cancer disability is due to his service. Although she concluded the Veteran's skin cancer disability resolved when it was removed, she also concluded it was not caused by herbicide agent exposure. See January 2021 VA Medical Opinion at 2. Her explanation that a link between herbicide agent exposure and skin cancer has yet to be determined is sufficient for the Board to evaluate whether the data she relied on connects to her conclusion. Nievez-Rodriguez, 22 Vet. App. at 301. Considering she supported her conclusion with a report of a medical study, the Board assigned her opinion significant weight. Although the examiner focused her discussion on the likelihood of a link between skin cancer and herbicide agent exposure, the Board notes the Veteran's post-service medical records do not suggest a medical finding of a causal relationship between his skin cancer and active service, generally. The relevant medical records note the size of the cancer and the surgery to remove it. But they do not address whether it is due to his service. Considering the VA examiner who prepared the January 2021 medical opinion searched the Veteran's record to indicate possible etiologies, the Board finds it likely she would have discussed evidence suggesting it was related to some other aspect of the Veteran's service if that were the case. In this case, the evidence is not approximately balanced on this issue of a nexus. The probative medical opinion of record concludes that the Veteran's skin disorder is not related to herbicide agent exposure. Also, the medical evidence does not suggest a nexus to his service, generally. So, doubt on this issue could not be resolved in his favor. Gilbert, 1 Vet. App. at 54. As a result, the Board finds a nexus has not been established between the Veteran's skin cancer disability and his service. In sum, the Veteran has not established he has had a skin cancer disability during the appeal period. Even if he had, service connection on a direct basis would not be warranted because he has not established a nexus between his skin cancer disability and service. 38 C.F.R. § 3.303. B. Entitlement to service connection for skin cancer on a presumptive basis. The Board notes that, if the Veteran had shown he had a skin cancer disability during the appeal period, he would have been unable to establish entitlement to service connection under 38 C.F.R. § 3.307. That is, based on a chronic condition that is due to herbicide agent exposure. The Veteran does not have a disorder associated with herbicide agent exposure. Those disorders are listed in 38 C.F.R. § 3.309(e) and they do not include the Veteran's particular skin cancer, squamous cell carcinoma. So, entitlement to service connection for the Veteran's skin cancer disability could not have been established on a presumptive basis. C. Entitlement to service connection based on chronicity and continuity of symptomatology. The Board notes that, if the Veteran had shown he had skin cancer disability during the appeal period, he would have been unable to establish entitlement to service connection under 38 C.F.R. § 3.309(a). That is, based on a chronic disease. Although the Veteran's skin cancer fits within the definition of "tumors, malignant, or of the brain or spinal cord or peripheral nerves," the evidence does not support finding it manifested during service or within a year after leaving service. 38 C.F.R. § 3.309(a). As discussed above, doubt could not be resolved in his favor on the issue of an in-service incurrence. As to whether the Veteran's skin cancer disability manifested within a year of leaving service, the examiner who prepared the January 2021 VA Medical Opinion concluded it did not. She explained it was not diagnosed until 2010, which is several years after service. Considering there is no lay or medical evidence suggesting it manifested before that date, the Board finds her explanation sufficient to evaluate whether the data she relied on connects to her conclusion, and assigned it significant weight. Nievez-Rodriguez, 22 Vet. App. at 301. Also, the Veteran's post-service medical records do not suggest continuous symptoms of skin cancer since leaving service. Even if the Veteran had shown he had a current skin cancer disability, the evidence weighs against finding it was shown in or noted during service. Nor does the evidence support finding continuous symptoms of a skin cancer disability since service. So, entitlement to service connection for a skin cancer disability could not have been established based on chronicity of continuity of symptomatology. In sum, the Veteran has not established entitlement to service-connection under 38 C.F.R. §§ 3.303, 3.307, or 3.309(a). Also, the Veteran has not raised any other issues nor have any other issues been reasonably raised by the record. Robinson v. Peake, 21 Vet. App. 545, 552-54 (2008) (holding the Board is not required to address issues unless specifically raised by the claimant or reasonably raised by the record). The Board regrets a more favorable decision could not be reached in the Veteran's case. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dean, Michael S. 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.