Citation Nr: 1201407 Decision Date: 01/13/12 Archive Date: 01/20/12 DOCKET NO. 09-07 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for skin lesions, claimed as basal cell carcinoma, squamous cell carcinoma, and/or malignant melanoma. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2011, the Veteran testified via video before a Veterans Law Judge. A written transcript of that hearing has been added to the record. FINDINGS OF FACT 1. The Veteran had military service in Vietnam and exposure to herbicides is presumed. 2. The Veteran has presented current diagnoses of squamous cell carcinoma, basal cell carcinoma, and malignant melanoma of the skin which, according to the competent medical evidence, are etiologically related to his sun and/or herbicide exposure during military service. CONCLUSION OF LAW Entitlement to service connection for residuals of malignant melanoma, squamous cell carcinoma, and basal cell carcinoma of the skin is warranted. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). To the extent there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with the issue on appeal given the favorable nature of the Board's decision with regard to the pending claim. The Veteran seeks service connection for cancerous skin lesions, diagnosed as malignant melanoma, squamous cell carcinoma, and/or basal cell carcinoma. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). Service connection may also be awarded for certain disabilities, such as malignancies, which manifest to a compensable degree within a year of service separation. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. Additionally, according to 38 C.F.R. § 3.307(a)(6)(iii), a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Service in Vietnam includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313(a). For such veterans with confirmed herbicide exposure, service connection will be presumed, in the absence of evidence to the contrary, for certain statutorily-enumerated disabilities which manifest within specific time periods following service. See 38 C.F.R. § 3.309(e). The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the National Academy of Sciences (NAS), has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); Notice, 75 Fed. Reg. 32,540 (June 8, 2010). In the present case, the Veteran's service personnel records confirm service in Vietnam pursuant to 38 C.F.R. § 3.307(a)(6). Thus, his exposure to herbicides is presumed. Nonetheless, skin malignancies such as malignant melanoma, squamous cell carcinoma, and basal cell carcinoma are not among the disorders listed at 38 C.F.R. § 3.309(e). Therefore, a grant of service connection for these disorders on a presumptive basis due to Agent Orange exposure must be denied. The statutory presumption is not the sole method for showing causation, and the Veteran is not precluded from establishing service connection with competent proof establishing direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, the Board must also consider entitlement to service connection based on possible onset of a skin malignancy during service, or as a result of herbicide exposure therein, if evidence to that effect is presented by the Veteran. As an initial matter, the Board concedes current diagnoses of malignant melanoma, squamous cell carcinoma, and basal cell carcinoma, as these diagnoses are confirmed by competent medical experts within both the VA and private medical records. An August 2005 clinical notation from the Veteran's private physician confirmed a past history of basal cell carcinoma. An August 2005 private biopsy report also confirmed malignant melanoma of the skin, and an April 2006 private biopsy report confirmed squamous cell carcinoma of the skin. On VA examination in July 2006, malignant melanoma was confirmed, as was squamous cell carcinoma of the skin. The Veteran has had multiple surgical excisions of his cancerous lesions of the skin, including two on his face. In light of the absence of evidence to the contrary, the Board finds current diagnoses of malignant melanoma, squamous cell carcinoma, and basal cell carcinoma, or surgical excision residuals thereof, is warranted. VA must next determine if these disabilities are etiologically linked to military service. The Veteran contends that his current skin disabilities are related to some combination of his Agent Orange and tropical sun exposure during military service. He stated that as a helicopter mechanic, he generally worked outdoors during military service, working on helicopters in Vietnam. Because of the extreme heat and humidity of that country, he would wear a t-shirt or no shirt while working outside, causing sunburns on his skin. The Board notes that the Veteran is competent to testify regarding such observable symptomatology during military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In support of his claim, the Veteran submitted private medical opinion statements from several physicians. Russel Pardoe, M.D., wrote in an October 2007 statement that the Veteran had both malignant melanoma and squamous cell carcinoma removed from several locations in 2005. Dr. Pardoe reported that it was the Veteran's contentions that these lesions were related to the circumstances of his military service. In a subsequent July 2009 statement, Dr. Pardoe described the Veteran as having a "very fair complexion." Regarding the Veteran's abnormal moles and lesions, these were "related to his exposure to the sun and sunburn" and possibly Agent Orange exposure during military service, in Dr. Pardoe's opinion. In a May 2008 statement, Charles Rigney, M.D., diagnosed the Veteran with malignant melanoma and basal cell carcinoma on several areas of the Veteran's face and forearms. Dr. Rigney stated that in his medical opinion, these lesions were the result of the Veteran's exposure to "intense tropical sun" during military service. Finally, in a September 2009 statement, Joan Hoffman, M.D., stated that it was at least as likely as not that the Veteran's Agent Orange exposure during military service resulted in his current malignant melanoma of the skin. In so contending, Dr. Hoffman made reference to recent medical research which suggested an etiological link between melanoma and herbicide exposure. After considering the totality of the record, the Board finds the evidence to be sufficient to support the award of service connection for residuals of malignant melanoma, basal cell carcinoma, and squamous cell carcinoma of the skin. Several private physicians have suggested a potential link between the Veteran's sun and/or herbicide exposure during military service and his current skin malignancies. These examiners are sufficiently qualified to offer expert opinions regarding the etiology of this disability, and these opinions are not contradicted by the other evidence of record, to include the July 2006 VA examination report, which does not specifically address the etiology of the Veteran's skin disorders. In light of 38 U.S.C.A. § 5108, the Board finds service connection for residuals of malignant melanoma, squamous cell carcinoma, and basal cell carcinoma of the skin is warranted. ORDER Entitlement to service connection for residuals of malignant melanoma, squamous cell carcinoma, and basal cell carcinoma of the skin is granted. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs