Citation Nr: 21030541 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-32 119 DATE: May 19, 2021 ORDER Entitlement to service connection for skin cancer, to include as due to Agent Orange exposure, is granted. FINDING OF FACT The Veteran's claimed skin cancer is at least as likely as not etiologically related to his active duty service CONCLUSION OF LAW The criteria for establishing entitlement to service connection for skin cancer, to include as due to Agent Orange exposure, have been met. 38 U.S.C. §§ 1101, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2020 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Presumptive service connection on the basis of herbicide exposure is authorized for specified diseases. 38 U.S.C. § 1116; 38 C.F.R. § 3.309. When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease is related to service, to include the in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Skin Cancer The Veteran seeks service connection for skin cancer disabilities which he contends are the result of his active duty service, to specifically include due to his conceded in-service herbicide exposure or due to his excessive sun exposure while in Vietnam. The Board notes that skin cancer is not a condition presumptively related to Agent Orange exposure. However, the Veteran can still prove service-connection on a direct basis. The medical evidence confirms that the Veteran has current diagnosis of nonmelanoma squamous-cell skin cancer. See March 2021 VA Skin Diseases examination. The central issue that must be resolved is whether the Veteran's current disability originated in service or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran's service treatment records (STRs) do not contain complaints of sun burn or skin cancer disabilities. However, in his February 2015 notice of disagreement (NOD) the Veteran stated that he was sunburned over a two-year period while in Vietnam due to his sun exposure, and he was exposed to Agent Orange and napalm fumes. As the Veteran was boots on the ground in Vietnam, his exposure to Agent Orange is presumed. Additionally, the Board finds the Veteran competent to report his sunburns, because it merely requires personal knowledge as observed through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, the Veteran's VA treatment records indicate that he has a long history of skin cancer and has sought treatment for this condition over the years, including skin cancer excisions. In response to the Board's May 2020 Remand, the Veteran was afforded a March 2021 VA Skin Diseases examination to address the etiology of the Veteran's claimed skin cancer disability. The examiner opined that the Veteran's skin cancer was less likely than not (less than a 50 percent probability) caused by his in-service Agent Orange exposure. The examiner cited to relevant medical literature in their rationale which noted that there was inadequate or insufficient information to determine whether there is an association between exposure to Agent Orange and skin cancer. The examiner further noted a study by MD Anderson which showed there may be a relation between skin cancer and Agent Orange exposure. However, the examiner noted that the study was very small, with only 100 participants, and the conclusion that there "may be an association" indicated no causation using acceptable epidemiological methods, and based on the limitations of the study, its findings could not be generalized. As such, the examiner opined that the Veteran's squamous carcinoma was less likely than not etiologically related to his in-service Agent Orange exposure. However, the examiner further opined that the Veteran's currently diagnosed skin cancer was at least as likely as not (a 50 percent probability or greater) incurred in, or caused by, the Veteran's sun exposure while in Vietnam. The rationale provided was that the medical literature indicated sun exposure as the greatest risk for skin cancer. The examiner further noted that the Veteran's sun exposure in Vietnam, a tropical country, contributed to him developing skin cancer. The examiner continued that skin cancer takes decades after exposure to develop, so the time between the Veteran's service in Vietnam, and the development of skin cancer was within the time frame expected for the development of skin cancer. Therefore, the examiner concluded that the Veteran's skin cancer is at least as likely as not etiologically related to his active duty service. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The Board finds that the March 2021 VA examiner's opinions to be persuasive and therefore assigns them great weight. The VA examiner's opinion was based on a review of the Veteran's medical history; review of the claims file; an in-person examination; and included citations to relevant medical literature. While the examiner opined the Veteran's skin cancer was not due to his Agent Orange exposure, they did provide a positive nexus to his active duty service including his in-service sun exposure. The Board may afford greater weight to a medical opinion on the basis of such factors as the reasoning employed, whether the opinion is based on sufficient facts and data, and whether the opinion is based on medical principles applied to the facts of the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board affords the VA examiner great weight. The Board has considered the Veteran's lay statements in support of his claim. He is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this case, the Veteran has reported that he was sunburned over the course of his two-year deployment in Vietnam. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. The evidence is thus at least evenly balanced as to whether the Veteran's current skin cancer disability is related to his active duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for skin cancer is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.