Citation Nr: 22014148 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 14-35 550A DATE: March 11, 2022 ORDER Entitlement to service connection for a skin disability, to include basal cell carcinoma, is denied. FINDING OF FACT The most persuasive evidence is against a finding that a skin disability began during active service, it did not manifest to a compensable degree within one year of discharge, nor is it shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW The criteria for service connection for a skin disability, to include basal cell carcinoma, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to June 1967. In November 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Entitlement to service connection for a skin disability The Veteran seeks service connection for a skin disability. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Certain evidentiary presumptions - such as the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist Veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112; 38 C.F.R. § 3.304 (b), 3.306, 3.307, 3.309. 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, 53 (1990). In statements and at hearing, the Veteran claimed to have developed skin problems, to include basal cell carcinoma (BCC) due to sun exposure while stationed in Panama during service. He testified that after 2009 his skin problems became more prominent. In support of his claim, the Veteran submitted a 2009 statement from his parents who reported that the Veteran had skin problems since service. He also submitted a statement from MCT who stated that the Veteran had skin problems for as long as she had known him, since 1981, at which time he was undergoing dermatological. The service records confirm the Veteran's at Fort Clayton, Panama. His DD-214 lists his military occupational specialty as AD artillery operations and intell assistant. The service treatment records do not show any complaints, history or findings consistent with a skin condition, nor was treatment for sunburn documented. On separation from service in April 1967, the Veteran denied a history of skin diseases, tumor or cancer, and on examination no skin abnormalities were noted. Treatment records after 1997, documented treatment for skin lesions. In 2001 he was treated for actinic keratosis and chronic hand dermatitis. In 2008 he was treated for BCC. In 2009, the Veteran reported having skin problems since service. Thus, the evidence does not reflect a chronic skin disorder in service or for many years thereafter. The Board notes that the first documented evidence of a chronic skin disorder was approximately three decades after the Veteran's discharge from service. In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). If, however, it is determined based on reliable evidence, that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service and post-service treatment records. Thus, the Veteran has not adequately shown that his present skin complaints continued since service. In addition, as discussed above, cancer was mot shown within the first year of discharge and the presumptions 38 U.S.C. §§ 1112, 1113, 1137 and 38 C.F.R. §§ 3.307, 3.309 do not apply. Here, there is no competent and credible evidence of a nexus between the Veteran's current chronic skin disorder and service. The only evidence of record in support of such a nexus is the Veteran's lay opinion. To the extent the Veteran, his parents and MCT believe that his current skin disorder, including BCC, is related to sun exposure in service, under the facts of this case that include no continuous post-service symptoms, the Board finds that as lay persons, they do not have the specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The diagnoses and/or etiology of BCC require medical testing and expertise to determine. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current claimed disorders, is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's assertions regarding the etiology of his skin condition, including BCC, diagnosed many years after service, and service, are of little probative value. In this regard, it is important for the Veteran to understand that the post-service treatment records provide particularly negative evidence against this case. (Continued on the next page) A VA examination or medical opinion regarding the etiology of his currently diagnosed BCC is not indicated as there is no suggestion that the Veteran's current skin disability may be associated with service. Again, there is no competent evidence of chronic skin condition or BCC in service or within one year following discharge from service. Moreover, there is no competent and probative evidence to show that the Veteran had a chronic skin condition or cancer, during or contemporaneous with service and no competent and probative evidence that his current disability is related to his service. On this record, there is no basis to grant the claim. For the above reasons, the evidence is neither evenly balanced nor approximately so, as to whether service connection for skin condition, including BCC, is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107 (b), 38 C.F.R. § 4.3, is therefore not for application in this regard. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.