Citation Nr: 22011191 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 18-50 019A DATE: February 25, 2022 ORDER Entitlement to service connection for residuals of squamous cell carcinoma of the lower lip, left calf, and left forearm, to include as due to herbicide exposure, is granted. FINDING OF FACT The Veteran's residuals of squamous cell carcinoma removal of the lower lip, left calf, and left forearm is etiologically related to his active service. CONCLUSIONS OF LAW 1. The Veteran was exposed to herbicide agents while serving in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. 2. The criteria for entitlement to service connection for residuals of squamous cell carcinoma removal of lthe ower lip, left calf, and left forearm, to include as due to herbicide exposure, have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1960 to May 1967, to include service in the offshore eligible waters off of Vietnam. See August 2021 VA Memo. In August 2021, the Board of Veterans' Appeals (Board) remanded the issues of entitlement to service connection for multiple skin lesions of the lower lip, left calf, and left forearm, as well as for squamous cell carcinoma of the lower lip, for further development. Specifically, the Board instructed the regional office (RO) to schedule the Veteran for VA examinations pertaining to his claims. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). The Board further notes that in a January 2022 correspondence to the Board, the Veteran's representative attempted to withdraw as the Veteran's representative of record. However, after an appeal has been certified to the Board, the representative must show good cause on motion, and other procedures must be followed. 38 C.F.R. § 20.6 (2021). Here, no good cause was shown. Accordingly, the Board denies the representative's request to withdraw. Finally, because of the relatedness of the issues identified in the December 2021 Supplemental Statement of the Case, they have been recharacterized as one issue. Service Connection Entitlement to service connection for the residuals of squamous cell carcinoma removal of the lower lip, left calf, and left forearm, to include as due to herbicide exposure, is granted. The Veteran contends that his residuals of skin lesions of lower lip, left calf, and left forearm, as well as his residuals of squamous cell carcinoma of the lower lip, was caused by exposure to herbicide agents while serving in the offshore eligible waters of Vietnam. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Federal Circuit Court has held that the term "in the Republic of Vietnam" includes service on the landmass, inland waterways, and the territorial sea extending 12 nautical miles from the shores of the nation. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Certain diseases will be presumed service-connected if a veteran was exposed to herbicide agents in service, even if there is no record of the disease during service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Pertinent to this case, however, skin cancer is not one of those diseases. Nonetheless, service connection for residuals of skin lesions and squamous cell carcinoma still may be granted on a direct basis if it is a 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 1163,166-67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). First, the record shows that the Veteran had been diagnosed with tumors and neoplasms of skin, to include squamous cell carcinoma, of the lower lip, left forearm, and left calf. See October 2021 C&P Exam. Though the Veteran had the cancer surgically removed, he has surgical scars on his lower lip, left forearm, and left calf. See October 2021 C&P Exam. Therefore, the first element of service connection is satisfied. Shedden, 381 F.3d at 1166-67. Second, with regard to the in-service element, VA has confirmed that the Veteran served in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23, during the Vietnam Era, and therefore he is presumed to have been exposed to herbicide agents during such service. See August 2021 VA Memo. The remaining question is whether there is a medical nexus between the Veteran's residuals of skin cancer and his service. As to this matter, the evidence conflicts. The Veteran underwent skin diseases and scars VA examinations in October 2021, in which the examiner noted diagnoses of tumors and neoplasms of skin, to include squamous cell carcinoma, of the lower lip, left forearm, and left calf from 2013 and surgical scars of the lower lip, left forearm, and left calf from 2013 and 2014. The examiner opined that the Veteran's condition was at least as likely as not related to his service because Agent Orange exposure puts a Veteran at a two-time higher risk for developing invasive skin cancers, like squamous cell cancer and basal cell cancer. An addendum opinion provided by the October 2021 examiner was associated with the Veteran's claims file in November 2021. The examiner concluded that squamous cell carcinoma and basal cell carcinoma of the skin were not presumptive conditions presumptively caused by Agent Orange exposure. She noted that most squamous cell carcinomas of the skin resulted from prolonged exposure to ultraviolet radiation, either from sunlight or tanning beds/lamps. Additionally, most basal cell carcinomas were thought to be caused by long-term exposure to ultraviolet radiation from sunlight. After careful consideration, the Board finds that the evidence regarding nexus is at least in equipoise. When the evidence for and against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence shows that the Veteran's residuals of skin lesions of lower lip, left calf, and left forearm, as well as his residuals of squamous cell carcinoma of the lower lip, was due to his presumed herbicide exposure. As all elements of service connection are satisfied, service connection for skin lesions of lower lip, left calf and left forearm, as well as his residuals of squamous cell carcinoma of the lower lip, is warranted. See 38 C.F.R. §§ 3.303. A. Rocktashel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.