Citation Nr: 21029071 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-10 801 DATE: May 12, 2021 ORDER Entitlement to service connection for a skin disorder, to include skin cancer, is denied. FINDING OF FACT The Veteran's skin cancer 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 skin disorders and skin cancer are not otherwise etiologically related to in-service injury, disease or exposure to herbicides or the sun. CONCLUSION OF LAW The criteria for service connection for a skin disorder, to include skin cancer, have not been 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 FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1969, including service in the Republic of Vietnam. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned Veterans Law Judge during a March 2019 hearing. A transcript of the hearing is in the record before the Board. The Board remanded this claim in July 2019 and December 2020. The Board finds that there has been substantial compliance with the Board's December 2020 remand and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a skin disorder, to include skin cancer. The Veteran contends that he has a skin disability which was caused by Agent Orange and/or sun exposure without protection during his Vietnam service. He testified during his March 2019 hearing that he consistently had itchy lesions that would not heal since his active service and he had basal cell carcinomas removed. In a March 2013 statement, he said that his skin disorder was due to Agent Orange and began in September 1969. In a September 2015 statement, he noted that he did not have skin protection during his Vietnam service. The Veteran's service personnel records reflect that he served in Vietnam. Accordingly, exposure to herbicide is conceded. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while VA and private treatment records show post-service history of basal cell carcinoma and skin diagnoses during the appeal period, and exposure to herbicides is conceded, the preponderance of the evidence weighs against finding that any skin disorder or skin cancer began during service or manifested during an applicable presumptive period or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Board first notes that neither skin cancer nor the other skin diagnoses noted during the appeal period are a disorder entitled to presumptive service connection based on exposure to herbicide agents under 38 C.F.R. §§ 3.307 and 3.309. The Secretary of Veterans Affairs 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). Skin cancer can be presumptively service connected under 38 C.F.R. § 3.309 (a), as malignant tumors are included as chronic diseases under this regulation. The Board finds the preponderance of the evidence is against a finding that the Veteran's skin cancer was manifested within the first post service year. Therefore, presumptive service connection under 38 C.F.R. § 3.309 (a) is not warranted. This is so because skin cancer was not documented until decades after his discharge from the military. See 38 C.F.R. §§ 3.307, 3.309 (a). Private treatment records from 1994 indicate that a basal cell carcinoma was removed but that "he had numerous moles removed over the years, all of which have been benign." This medical evidence indicates skin cancer was not manifested until many years after service. During his hearing, the Veteran testified that he had skin outbreaks on his hands and face where it itches and "turns raw" since service. Although the Veteran reported skin symptoms since service, the Veteran is not competent to diagnose skin cancer, particularly in a case like this where his medical history shows numerous noncancerous skin disorders. In addition, the Board finds the Veteran's reports of skin problems since service lack credibility as they are inconsistent with the other evidence of record, including his service separation examination which affirmatively noted no skin problems and the private medical evidence in 1994 which found that for many years after service, moles removed were noncancerous. As a result, service connection for skin cancer is not warranted based on continuity of symptomatology. Even if a disorder is not entitled to a regulatory presumption, service connection may be established based on herbicide exposure or other in-service event with evidence of direct causation under 38 U.S.C. § 1110; 38 C.F.R. § 3.303, as set forth above. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran's service treatment records do not show complaints, symptoms, findings or diagnoses related to the skin. His September 1969 report of separation medical examination and separation report of medical history reflect that his skin was normal on clinical evaluation and he denied skin diseases and tumor, growth, cyst and cancer. In his September 2016 written statement, the Veteran reported that he had been treated by VA for these conditions for the last 25 years, or since approximately 1991, many years after service. VA treatment records note his report that in 1990 and 1992 he had skin cancer removed from the face, lip, right cheek, left eyebrow and nose. VA has been unable to obtain VA treatment records from the Puget Sound VAMC for the period from January 1, 2005, to October 29, 2007, and has determined that these records do not exist. Therefore, VA's duty to assist has been satisfied in this regard. VA and private treatment records do not show complaints, symptoms, findings or diagnoses of a skin disorder or skin cancer for many years after the Veteran's separation from active duty. Service incurrence may be rebutted by the absence of medical treatment or diagnosis for the claimed condition for many years after service. Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). Consequently, the Board finds the fact that the first evidence of a skin disorder or skin cancer was many years after the Veteran's service tends to disprove the assertion that his skin disorder or skin cancer was incurred during his active military service. The Veteran's post-service treatment records note diagnoses of possible tinea (June 1994 private treatment record); lichen simplex chronicus, verruca, (September 1994 private treatment record); wart (January 1998 private treatment record); history of basal cell carcinoma, dyshidrotic eczematous changes (May 1998 private treatment record); dyshidrotic eczema (May 2003 private treatment record); and wart vs. punctate keratosis, and actinic vs. seborrheic keratoses with excoriations (March 2010 VA treatment record). Post-service treatment records also refer to removal of basal cell skin cancer ( September 2018 VA treatment record). The preponderance of the evidence, however, is against a finding that the post-service VA and private treatment records include any evidence or medical opinion linking any skin disorder or skin cancer to active duty, to include exposure to herbicides or the sun. A December 2020 VA Medical Opinion relates that the examiner spent ten hours on record review and report generation. The examiner reviewed the VA e-folder, VA electronic health record, the claims folder (VBMS) and VA electronic medical record (CPRS and JLV). The Medical Opinion sets forth extensive excerpts from the Veteran's medical records, his hearing testimony, a March 2014 rating decision and the Board's remands. The examiner answered the question posed by a December 2020 VA Form 2507 with the general medical opinion that it was LESS likely as not that the Veteran had a diagnosis of a skin condition that was at least as likely as not incurred in or caused by injury during service (capitalization in original). The examiner further provided specific opinions that the Veteran's basal cell carcinoma, seborrheic keratosis, benign nevi (otherwise known as moles), cherry angioma, dermatoheliosis, inflamed seborrheic keratosis and actinic keratosis were LESS likely than not related to his active service, to include in-service herbicide exposure and sun exposure (capitalization in original). The rationales for the specific medical opinions refer to findings in the Veteran's service treatment and personnel records, findings in his post-service treatment records, and his own statements on his claims and during the hearing. The rationales also provide material from medical texts. Information from the Mayo Clinic and Up To Date addresses the causes of the claimed skin disorders. Information from Veterans and Agent Orange: Update 11 (2018), from the National Academies of Sciences, Engineering and Medicine, relates that the Veterans and Agent Orange Committee concluded that there was inadequate or insufficient evidence to determine whether there was an association between exposure to herbicides used during the Vietnam conflict and basal-cell skin cancers. The examiner stated that this conclusion did NOT support a causal association between exposure to herbicides used during military service and basal-cell skin cancers (capitalization in original). In addition, there was inadequate or insufficient evidence of an association between exposure to herbicides used during the Vietnam conflict and chronic noncancerous skin conditions other than chloracne. The examiner pointed out that the Veteran's diagnosis of benign nevi did NOT represent pathology (capitalization in original). Benign nevi are commonly observed findings on the skin of most people and the diagnosis did not constitute a chronic and disabling condition. The examiner also pointed out that June 1994 treatment records related that the Veteran had spent a lot of time out in the sun working, owned an asphalt company, had a history of lots of sun damage, did not use sunscreen on a regular basis because it felt too oily, and had a construction company. A March 2000 treatment note related that the Veteran continued to boat extensively. The examiner considered the Veteran's report that during military service he was exposed to the sun without protection, and recognized his potential military exposure to ultraviolet radiation. However, review of the available evidence showed that in the years following military service the Veteran likely had significant exposure to ultraviolet radiation over decades in the context of his post-military work in construction/asphalt, with records noting that he owned a construction/asphalt company and retired from that line of work. It was common knowledge that work in the construction/asphalt industry entailed significant amounts of outdoor exposure. As such, this type of work likely would have exposed the Veteran to significant amounts of ultraviolet radiation over decades following his military service. Considering the years of cumulative exposure to ultraviolet radiation in the decades following service without regular use of sunscreen as noted by his treating dermatologist post-service it was LESS likely as not that any exposure the Veteran had to ultraviolet radiation during military service materially contributed to the development of his skin conditions (capitalization in original). The Board finds that the VA examiner's medical opinion is probative. It is based on an accurate and extensive review of the Veteran's medical history, and sets forth clear, well-reasoned conclusions. It provides detailed explanations that refer to the Veteran's medical history, his own statements and the current medical literature. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes that his post-service skin disorders and skin cancer are related to in-service herbicide and/or sun exposure without protection. As a layperson, he is not competent to opine as to this complex medical matter. Specialized medical training and expertise are required. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the competent medical evidence discussed above. Ultimately, the preponderance of the evidence is against a finding that the Veteran's skin disorders or skin cancer are causally related to any in-service injury, disease or event, to include herbicide and/or sun exposure without protection. Thus, the benefit of the doubt doctrine does not apply, and service connection for a skin disorder, to include skin cancer, is not warranted. 38 U.S.C. § 5107. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, 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.