Citation Nr: 22013633 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 17-43 696 DATE: March 10, 2022 ORDER Service connection for a skin disorder (claimed as skin cancer), to include as due to herbicide agents (Agent Orange) exposure is denied. FINDING OF FACT The Veteran's skin condition did not manifest in service or within one year of his separation from service and is not shown to be otherwise etiologically related to his active service, including due to herbicide agent exposure or due to an in-service burn. CONCLUSION OF LAW The criteria for service connection for a skin condition, to include as secondary to herbicide agent exposure or due to an in-service burn, have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1137, 5103, 5103A; 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from May 1970 to February 1972, including service in the Republic of Vietnam from March 1971 to January 1972. The Veteran also served in the Missouri Army National Guard from February 1972 to June 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously considered by the Board and remanded in September 2021. 1. Entitlement to service connection for a skin disorder (claimed as skin cancer), to include as due to herbicide agents (Agent Orange) exposure The Veteran is seeking service connection for a skin disorder (claimed as skin cancer), to include as due to herbicide agent exposure. It is the Veteran's contention that his skin condition was caused from being exposed to Agent Orange or was developed due to a severe burn he sustained in the Republic of Vietnam. See January 2012 VA 21-526 Veterans Application for Compensation or Pension; July 2014 Notice of Disagreement; and August 2017 Form 9. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires: (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (i.e., a nexus) between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). As an initial matter, the Veteran's military personnel record reflects that he had service in the Republic of Vietnam during the Vietnam War. Therefore, he is presumed to have been exposed to herbicide agents. The law provides that, if a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases afforded this presumption does not include the condition on appeal. Consequently, the herbicide agent exposure presumptive provisions of 38 U.S.C. § 1116 do not apply in this claim. In this regard, the Board notes that Dr. R.L. found in his October 2021 VA examination and addendum opinion that the Veteran had no diagnosed skin condition was which presumptively associated with herbicide agent exposure. He explained that the Veteran's diagnosed conditions such as actinic keratoses, ganglion cyst, actinic lentigo, seborrheic keratosis, and allergic dermatitis were not considered or part of chloracne skin condition for which the herbicide exposure presumption does apply. Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on herbicide agent exposure is not precluded from establishing service connection for such disability as due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, the Board has considered whether the Veteran's skin condition is otherwise related to his service, to specifically include his exposure to herbicide agents therein. Furthermore, service connection for chronic diseases listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The list of diseases afforded this chronic presumption includes skin cancer as a malignant tumor. Consequently, the chronic disease presumptive will be considered. The Veteran's service treatment records (STRs) are silent for any complaints of, treatment for, or diagnosis of any skin condition or associated symptomatology. An April 1970 entrance examination and February 1972 separation examination note that clinical evaluations of the Veteran's skin were normal. Additionally, an August 1972 examination in his STRs noted no rash was seen on examination. Postservice VA treatment records show the Veteran underwent a number of surgeries on his scalp and forehead for basal cell and squamous cell carcinoma from 2004 until the present time. These VA records further note the Veteran has keratotic areas. A February 2004 private dermatology progress note from Dr. J.C. remarked that the Veteran was a "redhead male" who "spent time in Vietnam with a history of much sun exposure." In December 2011, Dr. J.C. noted the Veteran had a history of much sun exposure and was at a high risk for future skin cancer. He had advanced actinic damage for his age. It was noted that biopsies revealed dozens of actinic keratoses on the right arm, subclinical keratoses on the head and neck, skin cancer on the forehead and face, ganglion cyst, actinic lentigo, and seborrheic keratoses. February 2012 VA medical records show that biopsies of the Veteran's scalp and forehead revealed squamous cell carcinoma which was excised. The Veteran's June 2012 Application for Compensation (VA Form 21-526) asserted that his skin cancer began post-service in May 2003 and claimed that he had received severe sunburn over 80 percent of his body during his time in Vietnam which required treatment. A June 2012 VA Agent Orange examination for the skin advised that in his current occupation in the pipeline industry, the Veteran had post-service work-related exposure to the sun, exposure to chemicals such as benzene, and exposure to a natural gas line. February 2013 VA medical records indicate the Veteran was there for consultation on a non-healing lesion on his forehead which was provisionally diagnosed as a neoplasm of uncertain behavior of the skin. The record revealed a well-established history of both squamous cell and basal cell carcinoma, with the current lesion consistent with basal cell carcinoma. It was also noted there was numerous intensely hyperkeratotic actinic keratoses on his face for which he received liquid nitrogen treatment. VA dermatology outpatient notes from September 2013 document that the Veteran presented for a follow-up of actinic keratoses as well as reported complaints of two non-healing lesions on his right arm. In his July 2014 Notice of Disagreement (NOD), the Veteran argued that he was seen in service for a serious burn, and he believed the burn he experienced while in service caused his current skin cancer. In an August 2017 Form 9, substantive appeal, he again asserted his belief that his skin carcinoma was the direct result of a burn he received in Vietnam and Agent Orange exposure. In September 2021, the Board remanded the matter in order to obtain records from Central Texas VA Healthcare System, which have since been associated with the file. Additionally, an examination was requested to determine whether the Veteran had a current skin disorder which was on the list of presumptive diseases for herbicide agents exposure. An opinion was also requested as to whether it was at least as likely as not that any other currently diagnosed skin disorder was at least as likely as not directly relate to the Veteran's presumed exposure to herbicide agents, to include Agent Orange, and/or is causally or etiologically related to his credible report of exposure to the sun and sunburn in Vietnam from March 1971 to January 1972. Pursuant to the Board's remand, a VA medical opinion was obtained in October 2021. The examiner, Dr. R.L., conducted a thorough review of the file and opined that the Veteran did not have a current skin condition that was on the list of diseases presumed to be associated with herbicide agents exposure. He further opined that the subclinical actinic keratoses on the head and neck, skin cancer (squamous cell carcinoma and basal cell carcinoma) on the forehead and face, ganglion cyst, actinic lentigo, seborrheic keratosis, and allergic dermatitis were skin conditions not caused by or associated with herbicide agents exposure. Therefore, it was less likely than not that these other currently diagnosed skin disorders in the record were directly related to the Veteran's presumed exposure to herbicide agents in Vietnam, to include Agent Orange. Dr. R.L. also opined, however, that while the Veteran's allergic dermatitis, ganglion cyst, and seborrheic keratosis were skin conditions not associated with credible reports of to the sun and sunburn in the Republic of Vietnam from March 1971 to January 1972, it was at least as likely as not that the actinic lentigo, actinic keratoses, basal cell carcinoma, and squamous cell carcinoma were causally or etiologically related the Veteran's credible reports of sun exposure and sunburn in service. As the October 2021 VA examiner did not provide a rationale for his opinion, the claims file was returned to him for an addendum opinion. In the October 2021 VA addendum medical opinion, Dr. R.L. reiterated that the Veteran had no skin condition presumptively related to herbicide exposure by explaining that the Veteran's diagnosed conditions such as actinic keratoses, ganglion cyst, actinic lentigo, seborrheic keratosis, and allergic dermatitis were not considered or part of a chloracne skin condition for which the herbicide exposure presumption did apply. In a November 4, 2021, VA addendum medical opinion, Dr. R.L. stated that herbicide agents exposure did not pose a risk for the formation of ganglion cysts, actinic lentigo, seborrheic keratosis, or allergic dermatitis. He explained that ganglion cysts formed when there was a small tear (herniation) in the sleeve of the tissue covering a joint or tendon. The tissue bulged and formed a sac. Fluid from the joint would then leak into the sac and cause swelling. The examiner noted that the name of the ganglion cyst would change with its place in the body. Regarding actinic keratosis, the examiner stated these were the most common precancer that formed on skin damaged by chronic exposure to ultraviolet (UV) rays from the sun and/or indoor tanning. Solar keratosis was another name for the condition while actinic keratoses resulted from long-term exposure to UV radiation. The examiner noted that squamous and basal cell cancers were also formed from long term exposure to ultraviolet radiation. Seborrheic keratoses, the examiner explained, were caused by a build-up of skin cells in the epidermis (top layer of the skin) including cells called keratinocytes. The examiner noted that older cells typically were replaced by newer skills when they flaked off and sometimes the keratinocytes in this layer grew faster than normal, resulting in a keratosis. Finally, for allergic dermatitis, the examiner pointed out that the most common cause for this condition was contact with something that irritated the skin or triggered an allergic reaction, such as poison ivy, perfume, lotion, or jewelry containing nickel. As the Dr. R.L. still did not provide a rationale for all opinions that he had originally provided in October 2021, the claims file was returned to him again. In a November 19, 2021, VA addendum medical opinion, the examiner opined the Veteran's allergic dermatitis did not occur during active military service as it occurred when the skin developed an allergic reaction after being exposed to a foreign substance. This, the examiner noted, would cause the body to release inflammatory chemicals that could make the skin feel itchy and irritated. The examiner also stated that the cause of ganglion cysts was unknown , that they often cleared on their own, but could be drained or removed if they became troublesome. The examiner then opined this condition occurred outside of the Veteran's active military service and was not related to that military service. For the Veteran's actinic lentigo and seborrheic keratoses, the examiner noted these conditions were common with age. Actinic lentigo, in particular, was prone to be found in older adults, people with fair skin, and people who had spent a lot of time in the sun. For this reason, the examiner found the Veteran's actinic lentigo was secondary to lifetime exposure to UV radiation independent from his active military service and the seborrheic keratosis was part of the skin aging process independent of military service. The examiner similar found that the Veteran's actinic keratoses, basal cell carcinoma, and squamous cell carcinoma were secondary to a lifetime exposure to UV radiation independent from the Veteran's active military service. In December 2021, the Veteran was scheduled for an in-person examination. This resulted in a diagnosis of basal cell and squamous cell carcinoma from 2004 on his face and arms. Onset was noted to be in the 1990s, with a few removals of the skin carcinoma. The examiner was asked to comment on the current severity of the Veteran's basal cell and squamous cell carcinoma and as a result, the examiner noted that the Veteran still presented still presented with lesions on the face and neck indicating chronicity. The examiner also stated that the only treatment found in the claims file regarding these conditions was local excision of lesions and local application of chemotherapy cream, but no treatment for systemic malignancies such as systemic chemotherapy or X-ray therapy. The examiner also noted that the Veteran had 5 to 10 percent of the face, ear, and neck exposed to basal cell and squamous cell carcinoma, and 5 to 10 percent of the body exposed to the same. After reviewing the record, the Board finds that service connection is not warranted for the Veteran's skin condition to include allergic dermatitis, ganglion cyst, actinic lentigo, seborrheic keratosis, actinic keratosis, or skin cancer. Regarding the chronic presumption for his skin cancers, the Board notes there is no evidence that the Veteran's basal cell and squamous cell carcinomas as a qualifying chronic disease, manifested in service or within one year of his separation from service such that service connection on that basis would be warranted. The December 2021 VA examiner indicated the Veteran's basal cell and squamous cell carcinoma began in 2004, with onset only as early as the 1990s. This is consistent with the findings noted in the Veteran's postservice treatment records along with the Veteran's own reports in his claim for service connection where he stated the skin cancer began post-service in May 2003. A manifestation of skin cancer in 2003/2004, or the 1990s, is at least a decade if not two decades after the Veteran's military service. Consequently, service connection for his basal cell and squamous cell carcinoma based on the chronic presumption is not warranted as it did not manifest to a compensable degree within the applicable presumptive period, nor is continuity of symptomatology established as there were not continuous complaints or treatment since service. Regarding direct service connection, the Board finds there is no competent evidence in the record of a nexus between the Veteran's skin condition and his in-service exposure to herbicide agents. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As Dr. R.L. noted in his November 2021 addendum opinion, the Veteran's skin conditions are ones with distinct etiological causes and for which herbicide agents exposure does not pose a risk for formation. He therefore found they were less likely than not due to his exposure to herbicide agent exposure. There is additionally no competent evidence of record establishing a nexus between the Veteran's skin conditions, including skin cancer, and his credible report of a burn and sun exposure in service. In this regard, the Board notes that a thorough review of the STRs did not reveal any report of a severe burn or treatment for such during service. Further, while Dr. R.L provided a positive etiology opinion in October 2021 regarding the Veteran's basal cell and squamous cell carcinoma, actinic lentigo, and actinic keratoses, this opinion was inadequate as it did not consider the totality of the record to include the Veteran's post-service sun exposure through his job as an inspector in the pipeline industry. Importantly, the same examiner, Dr. R.L., stated in his November 2021 addendum opinion that these conditions were "secondary to a lifetime exposure to ultraviolet radiation independent from claimant's active military service," (emphasis added). The Board finds this opinion more probative as it represents a more thorough consideration of the totality of the record and the Veteran's entire history of sun exposure. It is supported by the record which shows both that the Veteran's skin issues did not begin until decades after he left service in the 1970s and his extensive post-service sun exposure at his job. Accordingly, the Board finds that the evidence weighs persuasively against granting service connection for the Veteran's skin conditions, to include as due to in-service herbicide agent exposure or as secondary an in-service burn. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Stuedemann, A. 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.