Citation Nr: 21040531 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 10-40 565A DATE: July 5, 2021 ORDER Entitlement to service connection for skin cancer, to include basal cell carcinoma and squamous cell carcinoma, to include as due to in-service sun exposure, is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's diagnosed skin cancer, to include basal cell carcinoma and squamous cell carcinoma, was caused by his in-service sun exposure. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for skin cancer, to include basal cell carcinoma and squamous cell carcinoma, has been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1977 until his honorable discharge in August 1981, with additional service in the United States Naval Reserve. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. This matter is before the Board on appeal from an August 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Veteran presented sworn testimony during a hearing before a Veterans Law Judge. A transcript of that hearing has been associated with the claims file. This hearing was before a now-retired Veterans Law Judge. In April 2014, the Board remanded this matter for further development, to include obtaining an examination and medical opinion. An examination and medical opinion were obtained in March 2016, as such there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). In February 2021, the Veteran presented sworn testimony during a video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, the evidence must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. This presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 Veteran. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74; Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for skin cancer, to include basal cell carcinoma and squamous cell carcinoma. The Veteran asserts his current skin cancer developed due to his exposure to radiation. He also attributes his skin cancer to in-service sun exposure. As an initial matter, the Veteran has a current diagnosis of skin cancer, including basal cell carcinoma and squamous cell carcinoma. See private treatment records from R.G, M.D., P.A., private treatment records from Dermatology Centers, and the March 2016 VA Skin Diseases examination report. Therefore, the first element of service connection has been met. Regarding the two other elements of service connection, an in-service incurrence and a nexus relating the Veteran's current diagnoses to his military service, the Board finds these elements have been established. The Veteran's service treatment records (STRs) are silent for mention of any complaints, diagnosis, or treatment relevant to skin cancer. In a July 1981 release from active duty examination, the Veteran's skin was noted to be normal. In a contemporaneous Report of Medical History, the Veteran denied a history of skin diseases. The lack of records is not dispositive but constitutes evidence to be considered and weighed against other medical and lay evidence of record. Barr v. Nicholson, 21 Vet. App. 303 (2007). As noted above, the Veteran asserts his current skin cancer developed due to in-service sun exposure. The Veteran recalled being on the surface of his ship a good percentage of the time while performing his duties as Boatswain's mate. The Veteran stated he was not properly clothed for on-deck duties; he wore short-sleeved shirts and shorts, without the use of sunscreen. The Veteran recalled being outside in the extreme heat, on the open ocean, and having numerous sunburns to his face, neck, and upper body. See July 2012 and February 2021 Hearing Transcripts. According to the Veteran's DD Form 214, his military occupational specialty (MOS) was Mess Management Specialist. The Veteran's military personnel records confirm he served on the USS Emory S. Land (AS-39), a submarine tender; she cruised to California, Mexico, and Guantanamo Bay, Cuba, and deployed to the Pacific Fleet. She made a port call in Israel, sailed the Indian Ocean to Diego Garcia, and crossed the equator. The Board finds the Veteran's lay statements to be consistent with the places, types, and circumstances of his service, and therefore the Board presumes in-service exposure to the sun. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a Veteran seeks service connection must be considered based on factors including time, place, and circumstances of service as shown by a Veteran's service records). Although his service personnel records do not show that he performed duties as a Boatswain's mate, as he claims, the service record support his contention of serving aboard a naval ship in open waters sunny environments. Resolving all reasonable doubt in the Veteran's favor in this regard, the Board finds the second element for service connection is met. As to the third element for service connection, the Veteran must show evidence of a nexus between the current disability and the in-service event or injury. On that matter the record contains three medical opinions, one offered in July 2012 by R.G., M.D., a second offered by the March 2016 VA examiner, and a third offered in March 2021 by F.G., M.D., P.C. In July 2012, Dr. R.G. stated, "patients skin cancer is related to past sun exposure and skin type." The Board, in an April 2014 decision, found Dr. R.G.'s statement to be an "indication" that the Veteran's current skin cancer may be associated with service, however, there was insufficient evidence on file for the VA to make a decision on the claim. Therefore, the Board remanded the claim for an examination with medical opinion. Pursuant to the April 2014 remand order, a VA skin diseases examination was conducted in March 2016. The examiner provided a negative nexus opinion. In support of this opinion the examiner stated the Veteran was diagnosed with skin cancer twenty-seven (27) years after service. The examiner noted the Veteran's STRs are silent for sunburns, and his military occupations of 'cook' and 'radioman' were partially indoors. The examiner concluded the Veteran has risk factors for skin cancer that include fair skin, smoking, and age. In March 2021, Dr. F.G. provided a positive nexus opinion. Dr. F.G. noted the Veteran's job in the Navy required him to be on the surface of the ship for long periods of time with little to no protection from the sun, including no sunscreen, no shirt, and no hat. The Veteran reported he had numerous sunburns. After service the Veteran worked indoors with little sun exposure. Dr. F.G. noted in 2009 the Veteran was diagnosed with a lesion on his face. He remarked, the Veteran's lesions reference upper body exposure; he has no skin cancers from the waist down. In support of his opinion Dr. F.G. stated, The Veteran's skin cancers are related to military service through sun exposure with likely preexisting vulnerabilities by reason of lack of melanin in the skin. There is a history of sun exposure during military service with little exposure either before or after military service. A 60% impairment is present by reason of skin cancer secondary to solar radiation exposure. The Veteran exposed his skin to ultraviolet radiation and infrared radiation, as well as visible radiation. Ultraviolet and infrared radiation are carcinogenic and penetrate the skin to the basal layers inducing carcinogenic changes in basal cell DNA. The Board has the responsibility of determining the degree of probative value which may be attributed to a medical opinion issued by a VA or private provider. See Prejean v. West, 13 Vet. App. 444, 448-49(2000). The Board finds Dr. F.G.'s positive nexus opinion highly probative because it is based on an interview of the Veteran, consideration of his medical history and circumstances of service and is supported by a thorough rationale. The opinion provides persuasive evidence regarding the etiology of the Veteran's skin cancer. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). (Continued on the next page) When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Therefore, entitlement to service connection for skin cancer, to include basal cell carcinoma and squamous cell carcinoma, is warranted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, Associate 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.