Citation Nr: 22015449 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 19-15 746 DATE: March 17, 2022 ORDER Entitlement to service connection for residuals of malignant melanoma, squamous cell carcinoma, and basal cell carcinoma is granted on a direct basis. FINDING OF FACT The probative evidence weighs in favor of finding that the Veteran's skin disability (residuals of malignant melanoma, squamous cell carcinoma, and basal cell carcinoma) was at least as likely as not caused by his presumed exposure to herbicide agents in the Republic of Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin disability (residuals of malignant melanoma, squamous cell carcinoma, and basal cell carcinoma) have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from September 1964 to November 1970, including in the Republic of Vietnam from June 1967 to July 1968 and January 1970 to November 1970. In September 2019 and June 2021 Decisions, the Board remanded the issue herein for further medical development. 1. Entitlement to service connection for a skin disability (residuals of malignant melanoma, squamous cell carcinoma, and basal cell carcinoma) If a veteran was exposed to herbicide agents during service, then presumptive service connection may be established for certain conditions, including certain cancers, that become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In this case, the Board concedes the Veteran's presumed exposure to herbicide agents in the Republic of Vietnam; however, none of the Veteran's pertinent skin diagnoses are among those enumerated under 38 C.F.R. § 3.309(e) as warranting presumptive service connection. Nevertheless, the Veteran's inability to prevail on a presumptive basis does not foreclose his opportunity to prevail on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-33 (Fed. Cir. 1994). Direct service connection may be warranted if the evidence shows: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Although a competent medical opinion is generally required to establish etiology, competent and credible lay evidence of chronicity and continuity of symptomology may also establish etiology. 38 C.F.R. § 3.303(b); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran generally contends that his skin disability (residuals of malignant melanoma, squamous cell carcinoma, and basal cell carcinoma) was caused by in-service exposure to herbicide agents. Although service treatment records show no skin abnormalities upon entrance (see April 1964 examination), subsequent service records documented ongoing skin problems of unknown etiology starting shortly after the Veteran arrived in the Republic of Vietnam. See DD Form 214 (first arrived in the Republic of Vietnam in June 1967); August 1967 record (lipoma/cyst on left neck; provider did not discuss etiology); November 1967 record (rash on legs and buttocks for two weeks; provider noted that the rash was of unknown origin); May 1970 record (rash on left shoulder with pustules; provider speculated about etiology but was ultimately unsure); June 1970 record (boil and inflammation on back; provider did not discuss etiology). In the June 2021 Decision, the Board explained why the December 2019 VA etiological opinion was inadequate; as such, the Board will not discuss that opinion further. Stefl v. Nicholson, 21 Vet. App. 102, 124-25; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012); Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998). Upon the most recent remand, the Agency of Original Jurisdiction (AOJ) obtained a new etiological opinion in November 2021 (which it deemed inadequate) and an addendum etiological opinion in December 2021 (which it deemed adequate). The December 2021 examiner explained that: (a) it was impossible to determine the etiology of the skin disability (residuals of malignant melanoma, squamous cell carcinoma, and basal cell carcinoma) without resorting to mere speculation because, in general, melanoma and basal cell etiologies "are both environmental and genetic" and squamous cell carcinoma is "most commonly caused by UV radiation"); (b) the "significance of etiologic factors" in the Veteran were the "recognized causal factors include[ing] genetics and UV radiation;" and (c) there is "no clinical evidence" establishing a relationship between herbicide agent exposure and the aforementioned skin cancers. (Continued on the next page) Based on the above, the probative evidence weighs in favor of finding that the Veteran's skin disability (residuals of malignant melanoma, squamous cell carcinoma, and basal cell carcinoma) was at least as likely as not caused by his presumed exposure to herbicide agents in the Republic of Vietnam. As discussed above, the Veteran's ongoing skin issues began during service, shortly after arriving in the Republic of Vietnam, and the providers could not pinpoint the issues to a known etiology at the time. Further, the Veteran has competently reported, and the medical evidence of record corroborates, the Veteran's ongoing dermatological evaluations post-separation for numerous skin lesions which were nonmalignant until the cancer diagnoses began in 2015. See December 2019 VA skin diseases examination. Notably, the December 2021 examiner did not consider all pertinent service treatment records and the rationale was difficult to decipher, so the opinion is inadequate in that regard; however, the Board finds it telling that the examiner explained how it was impossible to provide further etiological analysis without resorting to mere speculation because, although there was no clinical evidence of a relationship between herbicide agent exposure and the pertinent diagnoses, these diagnoses are influenced by both environmental and genetic causes. As noted above, neither the April 1964 entrance examination nor other evidence of record indicates that the Veteran had any genetic predisposition to these diagnoses; as such, the December 2021 examiner's admission that environmental factors can alternatively cause these diagnoses, together with the environmental exposure to herbicide agents in service and the development of ongoing skin issues ever since, leads the Board to conclude that the skin disability was at least as likely as not caused by the in-service exposure to herbicide agents. Thus, the Board grants the claim on a direct basis. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.