Citation Nr: 21042059 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 16-30 448 DATE: July 11, 2021 ORDER Service connection for malignant skin neoplasms (skin cancer), to include as due to herbicide exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's malignant skin neoplasms began during active service, or are otherwise related to an in-service injury, event, or disease, to include herbicide exposure. CONCLUSION OF LAW The criteria for service connection for malignant skin neoplasms, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 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 December 1967 to December 1969. On appeal is an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for malignant skin neoplasms. The Veteran testified before the Board at a hearing in February 2019. A transcript of the hearing has been associated with the claims file. In May 2019, the Board remanded for additional development to include obtaining a VA examination. The matter has now been returned to the Board for adjudication. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. Also of record are VA examinations conducted in March 2013 and November 2019. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). VA laws and regulation also provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, certain enumerated diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). 1. Entitlement to service connection for malignant skin neoplasms to include as due to herbicide exposure. The Veteran contends that he has malignant skin neoplasms as a result of his exposure to herbicides, specifically Agent Orange, during service. His service records confirm his service in the Republic of Vietnam, and his herbicide exposure is presumed. As noted above, if a veteran was exposed to an herbicide agent during active service, certain enumerated diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. Recently, the list of enumerated diseases was expanded to include bladder cancer, hypothyroidism, and Parkinsonism to the list of those conditions presumptively associated with exposure to Agent Orange, but not malignant skin neoplasms. Here, the VA has conceded the Veteran was exposed to herbicides during service. However, the Board notes that the Veteran's claimed malignant skin neoplasms (skin cancer) is not one of the enumerated diseases associated with exposure to certain herbicide agents, as listed in 38 C.F.R. § 3.309(e). As such, service connection cannot be granted on a presumptive basis. Although service connection cannot be granted for malignant skin neoplasms on a presumptive basis for exposure to herbicides, this does not preclude the Veteran from establishing service connection on a direct basis. Combee v Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and his currently diagnosed malignant skin neoplasms. Service treatment records are silent for any complaint, diagnosis, or treatment of malignant skin neoplasms. The December 1969 Report of Medical Examination at separation reflects the Veteran had a normal examination with no defects or diagnoses noted. Private post-service treatment records from Johnson Dermatology establish that the Veteran has a history of malignant skin neoplasms. In 2011, he had an invasive cutaneous squamous cell carcinoma on the left upper arm that was treated with surgical excision. In 2013 he had a cutaneous squamous cell carcinoma on the scalp that was treated by destruction with curettage. In a February 2019 letter, a physician at Johnson Dermatology stated the most well established risk factors for cutaneous squamous cell carcinoma are light colored skin and accumulated ultraviolet light damage. The physician also noted that the relationship of cutaneous squamous cell carcinoma to Agent Orange exposure is unclear but that Agent Orange contains dioxin, a known human carcinogen, and there is some evidence that Agent Orange exposure might increase the risk for certain skin cancers. Post-service treatment records from the Fayetteville VAMC are also associated with the Veteran's claim file. In summary, these records reflect the Veteran had been seeing a dermatologist and treated for skin carcinomas on sun exposed areas. The Veteran underwent a VA examination for malignant skin neoplasms in March 2013. The examiner noted a current diagnosis of squamous cell carcinoma but did not provide a nexus opinion. The Veteran underwent another VA examination in November 2019. The examiner opined that his squamous cell skin cancer was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, to include herbicide exposure. The examiner stated that VA has recognized certain cancers and other health problems as presumptive diseases associated with exposure to Agent Orange or other herbicides during military service, but noted that these enumerated diseases do not include malignant skin neoplasms. As for direct service connection, the examiner stated squamous cell skin cancer is the second most common form of skin cancer and is usually found on areas of the body damaged by UV rays from the sun, to include the head, neck, chest, upper back, ears, lips, arms, legs, and hands. The examiner noted that the Veteran has had actinic keratoses as well, which are the keratotic precursors of squamous cell carcinoma caused by sun exposure. The examiner reviewed the study cited by the Veteran but concluded that the Veteran's sun exposure over his lifetime is still the most common and most likely cause of the squamous cell carcinoma. The examiner stated he found no evidence in the file to suggest herbicide exposure caused the squamous cell carcinoma. There is no contradictory opinion of record. Thus, in this case, when weighing the evidence of record, the Board finds compelling the lack of evidence linking the Veteran's malignant skin neoplasms to his military service on a direct basis. The Board has considered the February 2019 private opinion supplied by the Veteran and finds its probative value limited. The probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). However, the opinion is speculative in nature and does not provide the degree of certainty required for persuasive nexus evidence in this case. Although the opinion considers the Veteran's military history and medical history, they state the Veteran's exposure to herbicides in service "might" have contributed to his current skin disorder. Thus, the Board assigns this opinion little probative value. The Board has also considered the Veteran's statements concerning his belief that his malignant skin neoplasms, first diagnosed over 40 years after service, are due to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to report symptoms of malignant skin neoplasms, but the claimed disability is not the type of condition that is amenable to lay determination regarding its etiology, as specific findings are needed to properly determine etiology. Id; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As such, the Board finds that the preponderance of the evidence is against a finding that there exists an etiological relationship between the Veteran's malignant skin neoplasms and his time in service, to include herbicide exposure. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Thus, the criteria for service connection for malignant skin neoplasms on a direct and presumptive basis have not been met. Service connection for malignant skin neoplasms, on a direct and presumptive basis, must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jiggetts 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.