Citation Nr: A25041214 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240611-450130 DATE: May 6, 2025 ORDER Entitlement to service connection for basal cell carcinoma and squamous cell carcinoma is granted under the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act). FINDING OF FACT The persuasive weight of the probative evidence of record supports the Veteran's current basal and squamous cell carcinoma being related to his Gulf War service. CONCLUSION OF LAW The criteria for entitlement to service connection for basal cell carcinoma and squamous cell carcinoma on a presumptive basis have been met under the PACT Act. 38 U.S.C. §§ 1110, 1112, 1119, 1120, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Navy from June 1981 to September 1996. The Board recognizes his lengthy service and the sacrifices it necessarily entailed. An April 22, 2024 rating decision denied service connection for basal cell carcinoma and squamous cell carcinoma. The Veteran timely appealed this decision to the Board by requesting the Appeals Modernization Act (AMA) Direct Review Lane for a reevaluation of the evidence considered by the Agency of Original Jurisdiction (AOJ). See June 2024 VA Form 10182. As this is a Direct Review appeal under the AMA, the record closed on the date of the April 2024 rating decision. See 38 C.F.R. § 20.301. The Board cannot consider evidence submitted after the respective AOJ decision. See id. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the claim on appeal. 38 C.F.R. § 20.300. Service Connection, Including Presumptive Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent disabling within one year after service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a chronic disease enumerated in 38 U.S.C. § 1101(a) or 38 C.F.R. § 3.309 is diagnosed after separation from service, the nexus requirement of a claim for service connection can be proven by evidence of a continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection can also be granted on a presumptive basis for several medical conditions if a Veteran was exposed to toxic substances during active service. Veterans who were exposed to burn pits or toxic substances specifically during the Gulf War and post 9/11 eras are eligible for presumptive service connection if they have a current disability diagnosed as: asthma (diagnosed after service), head cancer of any type, neck cancer of any type, respiratory cancer of any type, gastrointestinal cancer of any type, reproductive cancer of any type, lymphoma of any type, lymphatic cancer of any type, kidney cancer, brain cancer, melanoma, pancreatic cancer, chronic bronchitis, chronic obstructive pulmonary disease, constrictive bronchiolitis or obliterative bronchiolitis, emphysema, granulomatous disease, interstitial lung disease, pleuritis, pulmonary fibrosis, sarcoidosis, chronic sinusitis, chronic rhinitis, and glioblastoma. 38 U.S.C. § 1120(b). See also 38 U.S.C. §§ 1117, 1119. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). It follows, that when the evidence persuasively favors one side or the other, this benefit-of-the-doubt rule is not applied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 1. Entitlement to service connection for basal cell carcinoma and squamous cell carcinoma is granted. The Veteran contends that his current skin cancer diagnosis is related to his Gulf War service. See, e.g., November 2023 VA Form 21-526EZ. Veteran's counsel also expresses general support for the Veteran's arguments and claim. See July 2024 Appellate Brief. The AOJ made the favorable findings that the Veteran has a current disability diagnosis of basal cell carcinoma and squamous cell carcinoma and a qualifying in-service incurrence of toxic exposure risk activities (TERA) during his Southwest Asia service. See April 2024 Rating Decision. See also 38 U.S.C. § 1119. Therefore, the Board finds these elements of service connection have been established. As the Veteran is a "covered veteran" under 38 U.S.C. § 1119 due to his Southwest Asia service, the Board makes the finding that his basal and squamous cell carcinoma is a form of "head cancer" presumptively related to his Gulf War service under the PACT Act. See 38 U.S.C. § 1120(b)(2)(A); VBA Letter 20-22-10, Processing Claims Involving the PACT Act, p. 24, 87 Fed. Reg. 78,543 (Dec. 22, 2022) ("sub-regulatory guidance"). Except for one squamous cell occurrence on his right leg, all cancerous lesions have occurred on the Veteran's face. See April 2024 VA Skin Examination (describing cancerous lesions occurring beginning in 2019 on his right leg, right side of his face, left cheek, temple, nose, left side of his face, left temple, and left upper eyelid). Construing the evidence in the manner most favorable to the Veteran, the Veteran here qualifies for service connection for his "head cancer" of basal and squamous cell carcinoma on presumptive grounds. The Board next considers whether the nexus evidence of record is consistent with a grant of service connection on presumptive grounds. In a January 2024 VA medical opinion, the examiner opined that the Veteran's squamous and basal cell carcinoma were less likely than not related to sun exposure during his Southwest Asia service because "there is no medical or scientific evidence available that provides any indication of a relationship between the development of the conditions at issue and the TERA" instead attributing his skin cancer to "a history of sun exposure due to growing up in Hawaii." The Board affords this opinion minimal probative weight because it ignores the presumption established under the PACT Act, which establishes as a matter of law that a link exists between Southwest Asia service and the development of "head cancer" at any point after such service. See McCray v. Wilkie, 31 Vet. App. 243, 256 (2019) (holding that "if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the veteran raises the issue or it is reasonable raised from review of the evidence of record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not"); 38 U.S.C. §§ 1119, 1120. In a March 2024 private medical opinion, the examining physician opined that the Veteran's carcinomas on his face "are most likely caused by his exposure to high levels of UV light while on the deck of an aircraft carrier while in the Pacific." The Board affords this opinion probative weight, enhanced because it cites relevant scholarship on the dose-dependent nature of UV light for exposed persons in their twenties. In an April 2024 VA medical opinion, the examiner opined that the Veteran's basal and squamous cell carcinoma is less likely than not related to his service because it deemed a lesion removed on his back during service as "usually benign," and his skin cancer lesions began with "an abrupt change to a facial mole in 2019," and not "skin cancer or precancerous lesions while in service." The Board affords this opinion minimal probative weight as well, given it also failed to consider the Veteran's current disability, as a "head cancer," qualifies for presumptive service connection under the PACT Act. See McCray v. Wilkie, 31 Vet. App. 243; 38 U.S.C. §§ 1119, 1120. In sum, the Board finds the persuasive weight of the probative evidence of record supports a medical nexus between the Veteran's Gulf War service and his current basal and squamous cell carcinoma on presumptive grounds, and all elements of service connection has been established. Therefore, entitlement to service connection for basal cell carcinoma and squamous cell carcinoma under the PACT Act is warranted, and this appeal is granted. Timothy Cothrel Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Galik, E. 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.