Citation Nr: 21027987 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 08-36 855 DATE: May 10, 2021 ORDER Entitlement to service connection for a skin disability, to include chloracne, porphyria cutanea tarda, and cancer, is denied. Entitlement to service connection for multiple myeloma is denied. FINDINGS OF FACT 1. The competent and credible evidence of record does not indicate that the Veteran's skin disability was incurred in or is otherwise associated with his period of active duty service, to include in-service exposure to herbicide agents. 2. The competent and credible evidence of record does not demonstrate that the Veteran had myeloma at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a skin disability, claimed as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an award of service connection for myeloma have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to August 1967. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2013 Rating Decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's claims of entitlement to service connection for chloracne, porphyria cutanea tarda, and multiple myeloma were initially developed as separate claims. The Veteran seemingly intended his claim of entitlement to service connection for multiple myeloma to be construed as a claim for a disorder of the skin, as he submitted a claim for "multiple myeloma, soft tissue sarcoma" in July 2011 following a VA dermatology consultation. As a result, in a November 2018 decision, the Board consolidated his claims into a single claim for "entitlement to service connection for skin disability to include chloracne, porphyria cutanea tarda, myeloma, and cancer" and remanded it for additional development. However, at this time, the Board emphasizes that multiple myeloma is not a skin cancer, but rather a cancer involving blood cells. As such, the Board has separated the claim of entitlement to service connection for multiple myeloma from the skin disability claim, as reflected in the above caption. Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2018); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran has not raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). These issues were previously before the Board in December 2020, at which time they were remanded in order to obtain all relevant outstanding VA treatment records and to provide the Veteran with an additional VA examination to determine the probable etiologies of his claimed disabilities. Additional VA treatment records were obtained and associated with the claims file in January 2021 and March 2021, while additional VA opinions were obtained in February 2021. Thus, the Board finds that there has been substantial compliance with its previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a remand request is required). The Veteran seeks entitlement to service connection for a skin disability, to include chloracne, porphyria cutanea tarda, and cancer, as well as entitlement to service connection for multiple myeloma. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2014) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The law provides that "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 the Veteran was not exposed to any such agent during that service." 38 U.S.C.§ 1116(f); 38 C.F.R. § 3.307. As a preliminary matter, the Veteran served in Vietnam for one year from August 17, 1966 to August 16, 1967. As such, in-service herbicide exposure has been conceded. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases listed under 38 C.F.R. § 3.309(e) shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.§ 5107(b). Here, a review of the Veteran's service treatment records does not reveal any complaints or diagnoses of skin symptomatology or myeloma. Although the Veteran indicated on his June 1965 Report of Medical History at pre-induction that he had suffered from boils, the corresponding June 1965 Report of Medical Examination at pre-induction indicated that his skin and lymphatics as well as his vascular system were within normal limits. Similarly, the Veteran indicated on his August 1967 Report of Medical History at separation that he had suffered from boils, although he denied ever having a skin disease, tumor, growth, cyst, and/or cancer. The corresponding August 1967 Report of Medical Examination at separation indicated that his skin and lymphatics as well as his vascular system were within normal limits. As such, there is no evidence of chronic in-service skin symptomatology or a diagnosis of myeloma. VA treatment records dated in June 2011 indicated that while checking skin tags on the Veteran's chest, a staff physician noticed a skin lesion around the area of his left jaw that "could" be the beginning of a basal cell carcinoma. As a result, the Veteran was referred to surgery to remove the lesions. A subsequent VA treatment record noted a flat skin lesion on the left mandibular margin of the Veteran's face measuring fifteen by five millimeters, an ulcerated skin lesion of the inner upper right buttock measuring one centimeter, and multiple small skin tags on the Veteran's chest and neck. Following surgical excision of these skin lesions, the Veteran's left mandibular skin condition was diagnosed as pigmented seborrheic keratosis, occurring in a background of solar lentigo (with no malignancy observed), while his right buttock skin condition was diagnosed as chronic spongiotic dermatitis (atopic or nummular) with superimposed changes of lichen simplex chronicus with focal excoriation (with no malignancy observed). As a result of this medical treatment, in July 2011, the Veteran filed a claim of entitlement to service connection for "multiple myeloma, soft tissue sarcoma" due to in-service Agent Orange exposure. The Veteran was then provided with a VA examination by the oncology department in September 2011. At that time, the examining physician explained to the Veteran what multiple myeloma was, and the Veteran conceded that he did not have myeloma and did not mean to submit a claim for myeloma; the Veteran thought he had possible malignant melanoma, admitting to being confused by the terminology. The examiner then reassured the Veteran that the documented skin lesions were benign. Although the Veteran expressed other concerns regarding other physical problems that he believed were related to Agent Orange, the examiner advised him that the current appointment was for oncology issues only, of which there were none. Thereafter, the Veteran contended that he was entitled to service connection for porphyria cutanea tarda, chloracne, and multiple myeloma on a presumptive basis due to presumed herbicide exposure to Vietnam. He reported that the blotches/scarring on his skin were indicative of porphyria cutanea tarda, and that a dermatologist would find that he also had chloracne. Additionally, a May 2018 VA dermatology consult indicated that the Veteran's face exhibited small, purplish, pearly plaques, one in the right infra-auricular region and one on the outer ear (pinna), as well as seborrheic keratosis of the left temple. Correspondence from a VA dermatologist dated in July 2018 indicated that both of the Veteran's biopsies showed skin cancer. As such, in November 2018, the Board remanded the matter for a VA examination to determine the nature of the Veteran's current skin conditions and whether these skin conditions were related to service. Specifically, the examiner was to confirm whether the Veteran had current diagnoses of porphyria cutanea tarda, chloracne, and/or multiple myeloma; and then provide an opinion addressing the likelihood that any confirmed diagnosis was due to his period of active service, to specifically to include his presumed in-service herbicide agent exposure. Pursuant to the Board's November 2018 Remand, the Veteran was provided with a VA examination in June 2019, at which time the examiner indicated that the Veteran did not have a current skin condition. Specifically, the examination report indicated that the Veteran stated, "I just want to get up to 100%. There must be something here that'll get me from 90% to 100%." The Veteran further stated he had never been diagnosed with nor treated for porphyria cutanea tarda, chloracne, or multiple myeloma, either during active military service or since separation. The VA examiner indicated that the Veteran did not previously have a skin condition that was now completely resolved and no longer required treatment of any type. The examiner concluded that, "No objective evidence of diagnosis of or treatment for claimed porphyria cutanea tarda, chloracne, or multiple myeloma per review of the veteran's STR, C-file, and VA medical record. Diagnosis is not established. For that reason, medical opinion is not indicated." However, the June 2019 VA examiner failed to provide an opinion or acknowledge the diagnosis of skin cancer documented in the July 2018 correspondence. As such, in December 2020, the Board again remanded the claim so that an additional VA examination could be obtained. Pursuant to the Board's December 2020 Remand, the Veteran was most recently provided with a VA examination in February 2021, at which time he was diagnosed as having basal cell carcinoma. Furthermore, the examination report indicated that the Veteran stated he never had a diagnosis of or treatment for porphyria cutanea tarda and/or chloracne, and that there was no evidence of these conditions at the time of examination. Additionally, the examination report noted that the Veteran was also claiming multiple myeloma (which is a white blood cell condition rather than a skin condition), although the Veteran denied diagnosis or treatment for this condition as well. With respect to the diagnosed basal cell carcinoma, the VA examiner opined that the condition was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the VA examiner explained that: Veteran has no diagnosis for chloracne, porphyria cutanea tarda, or multiple myeloma noted in medical records or on physical exam today. Veteran has a diagnosis of basal cell carcinoma which is more likely than not related to years of unprotected sun exposure (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC214105/). Veteran's diagnosis of basal cell carcinoma is not noted until 2018, Veteran has single diagnosis of skin condition with carcinoma noted on 9/2011 but cannot find initial diagnosis or biopsy report for official diagnosis, separation from military service is listed as 1967. More than a 40 year disparity for skin cancer of any type. Without resorting to mere speculation of length of exposure to sun in military service vs. as a civilian, a nexus has not been established between military service and claimed condition of skin cancer diagnosed as basal cell carcinoma. Finally, with respect to presumptive service connection, the examiner stated that, "Veteran has diagnosis of skin cancer determined to be basal cell carcinoma. Basal cell carcinoma is not listed as one of the presumptive neoplasms caused by Agent Orange/herbicide exposure in Vietnam per VA (https://www.publichealth.va.gov/exposures/publications/agent-orange/agent-orange-2020/presumptive.asp). A nexus has not been established between herbicide exposure and Veteran's claimed condition of skin cancer diagnosed as basal cell carcinoma." In addition, a November 2020 VA dermatology note diagnosed the Veteran as having a fibroepithelial polyp of the left ear. The dermatologist indicated that this was a benign/normal skin tag for the Veteran's age, that no cancer was seen, and that no further treatment was needed. Despite the Veteran's presumed exposure to an herbicide agent in service, presumptive service connection under 38 C.F.R. § 3.307(a)(6) is still not for application. The Veteran has not been diagnosed as having chloracne, porphyria cutanea tarda, or multiple myeloma at any time during the rating period on appeal. Although the Veteran has been diagnosed as having basal cell carcinoma, this diagnosis is not among the diseases VA recognizes as presumptively due to exposure to herbicides. Notwithstanding that fact, however, the Veteran is not precluded from establishing service connection by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However, after a review of all the lay and medical evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claims on a direct basis as well. The Veteran's service treatment records show no complaints of, treatment for, or diagnosis of basal cell carcinoma or any other skin disability, despite the Veteran reporting that he suffered from boils at the time of his Reports of Medical History at pre-induction and separation. Significantly, on his August 1967 Report of Medical History at separation, the Veteran denied ever having a skin disease, tumor, growth, cyst, and/or cancer. This is corroborated by the August 1967 Report of Medical Examination at separation, which indicated that his skin and lymphatics were within normal limits. As such, there is no evidence of chronic in-service skin symptomatology. To the extent that the Veteran now asserts that his skin disability started in service, the Board finds that such assertions are contradicted and outweighed by the Veteran's own contemporaneous reports at service separation, as discussed above. In this regard, the Board is not relying on the absence of evidence, but rather on the contemporaneous, affirmative lay reports of symptoms and history by the Veteran, as well as contemporaneous medical assessments of the skin at service separation. While not dispositive, the first post-service evidence of a complaint of a skin disability was in June 2011, when the Veteran sought treatment for skin tags and was diagnosed as having seborrheic keratosis and dermatitis, which were excised and determined to be non-malignant. The Veteran was later diagnosed as having basal cell carcinoma in 2018. This approximately 44-year gap between discharge from active duty service and when the Veteran complained of his skin disability is a factor that weighs against in-service onset. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran believes that his skin disability is related to in-service exposure to herbicide agents. While he is competent to report symptoms of a skin disability, such as a visible rash, he is not competent to provide a nexus opinion with respect to the etiology of such a disability. The issue is medically complex, as it requires knowledge of the dermatological system and the development of basal cell carcinoma years after presumed in-service exposure to herbicide agents. The record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The VA February 2021 VA examiner opined that the Veteran's diagnosed basal cell carcinoma was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. Rather, based on the gap of over 40 years between the Veteran's period of active duty service and the first manifestations of carcinoma, the examiner concluded that the Veteran's basal cell carcinoma was more likely than not related to years of unprotected sun exposure. The Board affords this opinion, backed by medical literature and findings, much more probative value than the Veteran's lay assertions. (Continued on the next page) With respect to multiple myeloma, a review of the medical evidence of record does not establish the first element of service connection as a diagnosis of myeloma has not been demonstrated at any time during the appeal period or proximate thereto. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Notably, the Veteran was afforded VA examinations to address his claimed myeloma in September 2011, June 2019, and February 2021. These VA examiners have found no evidence of myeloma. The Veteran has also not provided any evidence or asserted that he has a diagnosis of myeloma. The Board has also thoroughly reviewed the remainder of the claims file and finds that there are no diagnoses of myeloma. As the first element has not been met for the service connection claim with respect to myeloma, the remaining questions of in-service disease or injury and medical nexus need not be addressed. The preponderance of the evidence is against the Veteran's claims. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.