Citation Nr: 21040001
Decision Date: 07/02/21	Archive Date: 07/02/21

DOCKET NO. 16-58 313
DATE: July 2, 2021

ORDER

Entitlement to service connection for basal cell cancer is denied.

Entitlement to service connection for a cervical spine disability is denied.

Entitlement to service connection for a left knee disability is denied. 

FINDINGS OF FACT

1. Basal cell cancer was not manifest in service and is not shown to be attributable to service to include as due to exposure to herbicides in service.

2. A cervical spine disability was not manifest in service and it is not otherwise attributable to service.

3. A left knee disability was not manifest in service and it is not otherwise attributable to service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for basal cell cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020).

2. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020).

3. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Air Force from June 1966 to April 1970.

The Board notes that when this appeal was last before the Board in August 2019 the issue of entitlement to service connection for sleep apnea was remanded for further development. In an August 2020 rating decision, however, service connection for sleep apnea was granted. As the benefits sought on appeal have been granted, the Board no longer has jurisdiction over this issue.

Service Connection

The Veteran appeals the denial of service connection for basal cell cancer, a cervical spine disability and a left knee disability. During his hearing, the Veteran testified that he was an air cargo specialist in service and that he volunteered for flight duty in Vietnam. He described a fall in service which caused him to twist and land on his knee. At that time, he was taken to the hospital on a stretcher. The Veteran recalled that "everything" on his body hurt at that time. He was put on desk duty after the fall and then placed on temporary leave before he retired. The Veteran testified that he was told by his physician that his left knee problems could have started with his fall in service. During his hearing, the Veteran also expressed that his neck problems started a few years after the fall, but he believed his neck problems are due to his fall in service. The Veteran also argues that his skin disability is due to his exposure to herbicides in service.

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as an arthritis and malignant tumors, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era. See 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if 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. 38 C.F.R. § 3.309(e). 

Of note, the National Defense Authorization Act (NDAA) for Fiscal Year 2021 has added three disorders to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2) to include Parkinsonism, bladder cancer, and hypothyroidism.

Here, personnel records show that the Veteran served in Vietnam during the Vietnam Era. Thus, herbicide exposure has been conceded. However, although the Veteran is shown to have had basal cell cancer, the Veteran's diagnosed condition is not a condition subject to presumptive (herbicide or Agent Orange) service connection pursuant to 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). As the Veteran has not been diagnosed with one of the specific diseases listed within 38 C.F.R. § 3.309(e); service connection on a presumptive basis is not warranted.

The Board also finds that service connection is not warranted on a direct basis for basal cell cancer, a cervical spine disability and a left knee disability. To that end, service treatment records show that in November 1969 the Veteran fell to the pavement while working on a highline platform. Contusion of the left elbow and right knee was noted. The March 1970 MEB examination and February 1971 reevaluation disclosed normal findings for the neck, skin-lymphatics, spine-other musculoskeletal, and lower extremities. During both examinations, the Veteran denied a history of trick or locked knee and skin diseases. Service treatment records do not reflect any complaints, treatment, or diagnoses pertaining to the skin, left knee and/or cervical spine. 

Post service treatment records and lay statements indicate that the Veteran was diagnosed with and treated for basal cell carcinoma in 2014, which is over 40 years after his separation from service. With respect to the left knee, the record reflects that the Veteran underwent several surgeries in approximately 1980, 1982 and 1985. In 1983, the Veteran described left knee problems which he had attributed to the in-service accident. The record also discusses a history of C6-7 discectomy in approximately 1990 prior to another cervical spine injury in approximately 2005. 

The Board has reviewed the medical records of file. These records do not include any competent opinion linking the Veteran's current disabilities to service or any incident therein. There is no competent evidence or opinion that the Veteran's disabilities are related to his military service and neither the Veteran nor his representative has presented any such opinion.

Rather, the March 2020 VA examiner opined that the knee and cervical spine conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in service injury, event, or illness. The VA examiner reasoned that in review of the Veteran's medical records and in examining the Veteran, he has history of left knee injury with severe osteoarthritis. It was noted that medical records indicated that he fell in November 1969 while working on a highline platform, and that injuries documented from this fall include compression fracture of right radial head and contusion left elbow and right knee. It was also noted that the Veteran started reporting left knee problems in 1980 and had the first arthroscopic surgical procedure on left knee in June 1980.  The examiner stated that the Veteran had severe left knee arthritis and that risk factors for osteoarthritis include joint injury and anatomical factors including joint shape and alignment as well as obesity as seen in the Veteran. Given the large time gap since the fall in 1969, no document of left knee injury after the fall, the first reported complaints in 1980, the examiner found that it was not possible to directly correlate the left knee condition to the fall. The examiner found that the claimed left knee condition is less likely than not incurred in or caused by the claimed fall in 1969 during service. 

With regard to the cervical spine, the examiner stated that the Veteran had cervical spine surgery in 1990 (reported C6-7 discectomy in approximately 1990 prior to another cervical spine injury in approximately 2005). Degenerative joint disease is associated with characteristic pathologic changes in the joint tissues. It was noted that proinflammatory factors appear to be driving the production of the proteolytic enzymes responsible for the degradation of the extracellular matrix that results in joint tissue destruction. The examiner stated that multiple risk factors have been linked to the pathogenesis of osteoarthritis, including age, joint injury, obesity, genetics, anatomical factors including joint shape and alignment, and gender. Given the large time gap since the fall in 1969, no document of cervical spine injury after the fall, first reported complaints in 1990, the examiner found that it was not possible to directly correlate the cervical spine condition to the fall. The examiner opined that the cervical spine condition was less likely than not incurred in or caused by the claimed fall in 1969 during service. 

The opinions of the VA examiner were rendered by a medical professional with the expertise to opine on the matters at issue in this case. The examiner addressed the Veteran's contentions and based the opinions on a review of the claims folder to include consideration of the in-service history and the nature of the current disability. As the opinion is based on a review of the claims folder, examination of the Veteran as well as a consideration of the in service and post service history, the Board finds the opinion to be of great probative value. Hayes v. Brown, 9 Vet. App. 67 (1996). 

In making the decision above, the Board notes that the Veteran is competent to report his symptoms and the circumstances surrounding such. The Board has taken into consideration the Veteran's statements discussing the onset of his symptoms, the nature of his disabilities and his exposure to herbicides in service. The Board is also mindful that the Veteran's spouse described an abnormal skin lesion which had been present on the Veteran for a long time. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, the etiology of the Veteran's skin cancer and arthritis of the left knee and cervical spine, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Thus, the Board has afforded greater probative value to the opinions of the VA examiner than the lay statements of record.

The Board also notes that VA has established certain rules and presumptions for chronic diseases, such as arthritis and malignant tumors. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d. 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

The Board notes that there is no showing that pertinent symptomatology has been recurrent/persistent since service and the Veteran does not allege recurrent/persistent symptoms since service. Although the Veteran reports a history of falling during service and he reports having neck and knee issues after the fall, he essentially argues that his neck and knee problems started hurting over the years. It is also noted that in the March 1970 MEB examination and February 1971 reevaluation, the Veteran denied a history of trick or locked knee. To the extent there is any ambiguity regarding chronicity of symptoms of the left knee since service, the Board places greater probative weight to his statements denying chronic knee problems in service as these statements were made in contemporaneous to the time period in question and deemed reliable as being made to an examiner in the context of a medical evaluation.

The Board further notes that the Veteran was not symptomatic with skin cancer until many years after service. There is also no lay or medical evidence of skin cancer symptoms and/or arthritis during service or within one year of discharge. As such, service connection for basal cell cancer, a left knee disability and a cervical spine disability is not warranted based upon continuity of symptomatology under 38 C.F.R. § 3.303(b) or as being manifested to a compensable degree within one year of service discharge under 38 C.F.R. § 3.309(a).

In making this determination, the Board is mindful that the Veteran has not been afforded a VA examination in relation to the claim for service connection for basal cell cancer. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.

As noted, the most credible lay evidence shows that there has not been persistent or recurrent skin symptoms since the Veteran's service. While the Veteran's spouse described an abnormal skin lesion which she expressed had been present on the Veteran for a long time, she did not provide a time frame and there is no competent evidence suggesting that the lesion started in service or is otherwise related to service to include as due to herbicide exposure. See Waters v. Shinseki, 601 F.3d 1274, 1275 (Fed. Cir. 2010) (rejecting that examinations are to be routinely and virtually automatically provided to all veterans in cases involving nexus issues).

In conclusion, service connection for basal cell cancer, a cervical spine disability and a left knee disability is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107.

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T.S. Willie

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.