Citation Nr: 21042058 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 16-35 283 DATE: July 11, 2021 ORDER Entitlement to service connection for skin cancer is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's skin cancer had its onset during active service or within a year of separation, or that it is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for skin cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 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 in the United States Army from April 1966 to November 1966. At an April 2019 videoconference hearing the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. This matter was previously denied by the Board of Veterans' Appeals (Board) in a decision issued in August 2019. In that decision, the Board denied entitlement to service connection for skin cancer. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020 the Court issued an order granting a Joint Motion for Remand (JMR), which vacated the Board's August 2019 decision and remanded the matter for adjudication consistent with the instructions outlined in the JMR. In accordance with the JMR, the Board remanded the matter in March 2021 for an opinion regarding whether the Veteran's skin cancer was related to active service due to general outdoor activity in prolonged sunshine. That development having been completed; this claim is once again before the Board. Entitlement to service connection for skin cancer Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). In addition, certain enumerated disorders, such as malignant tumors, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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 Veteran contends that his skin cancer is related to active service due to general outdoor activity in prolonged sunshine. The Board concludes that, while the Veteran has a current diagnosis of skin cancer, and evidence shows that he has been treated for skin cancer, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of basal cell carcinoma began during service or is otherwise related to an in-service injury or disease. The Veteran's STRs contain no relevant complaints, symptoms, treatment, or diagnosis of skin cancer or any other skin condition, apart from acne. Reserve treatment records included a diagnosis of a rash on the back. Post-service, the earliest indication of any skin cancer was a March 1990 diagnosis of basal cell carcinoma of the left posterior ear, which was subsequently excised. Numerous other instances of basal cell carcinoma diagnoses were later made with respect to the Veteran's face, neck, ears, and back, with additional diagnoses of actinic keratosis and benign cysts. In a March 2001 note, the Veteran's private dermatologist noted that the Veteran had several skin cancers on his face removed over the years by this dermatologist. The dermatologist noted that the types of skin cancers the Veteran experienced were associated with prolonged sun exposure and ultraviolet light exposure. The dermatologist stated that he believed the UV exposure that the Veteran had due to his job as a postal carrier had contributed to his medical condition. The Veteran underwent a VA examination in November 2014 at which pseudogynecomastia from increased breast fat and subcutaneous nodules of the left breast, right neck, and mid-back were observed. The examiner concluded that the Veteran's history of skin cancer was less likely than not incurred in or caused by the in-service gynecomastia surgery, as the weight of the medical literature does not support a nexus by which to link gynecomastia with the later development of skin cancer. Risk factors for skin cancer included environmental and genetic factors, with ultraviolet radiation in sun exposure being the most important factor. While this examination was for pseudogynecomastia, it did discuss the Veteran's history of skin cancer and rendered an opinion as to the Veteran's skin cancer. However, the examiner did not discuss the Veteran's contention that his skin cancer was related to his in-service sun exposure. At the March 2019 hearing, the Veteran estimated that he was first diagnosed with skin cancer less than ten years after service separation, and that he had several instances of cancer subsequently. He noted that his post-service employment was as a postal carrier, but that he always used sunscreen and a protective helmet. In accordance with the JMR, a medical opinion was requested regarding the Veteran's contention that his skin cancer is related to his in-service sun exposure. In an April 2021 medical opinion, the examiner opined that the Veteran's history of skin cancer is less likely than not related to an in-service injury, event, or disease, including in-service sun exposure. The examiner acknowledged the Veteran's seven months of in-service sun exposure but noted that the Veteran had more than 70 years of nonservice-related UV exposure that was likely a significant contributing factor to his history of numerous basal cell carcinomas. The examiner noted that the Veteran had blue eyes and fair skin, which are well-known risk factors for basal cell carcinomas. The examiner reviewed the Veteran's service treatment records, which were silent for skin cancer or sunburns. Further, the examiner noted that the Veteran was not diagnosed with basal cell carcinoma until 1990, more than 20 years after his separation from active service. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA and private treatment records show the Veteran was not diagnosed with skin cancer until March 1990, decades after his separation from service. While the Veteran is competent to report having experienced skin conditions since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of skin cancer, or that his skin cancer is due to in-service exposure to sunlight. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the April 2021 VA examiner's opinion. The Board finds that service connection for skin cancer is not warranted. There is no evidence of skin cancer or any skin abnormalities apart from acne, during active service or within a year of separation. The first clinical evidence of basal cell carcinoma was more than 20 years after discharge and after many years of outdoor employment. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran's skin cancer had its onset in or is otherwise related to active service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, 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.