12-23 274
12-23 274
| Board of Vet. App. | Jul 31, 2017Background
- Veteran served on active duty 1964–1991, including service in the Republic of Vietnam; awarded a Combat Action Ribbon. Veteran died June 2012; appellant is surviving spouse and VA-substituted claimant.
- Claim: service connection for skin cancer (squamous cell carcinoma), asserted to be due to herbicide/Agent Orange exposure.
- Procedural posture: appeal from August 2010 RO denial; SOC issued May 2012; substantive appeal July 2012; remanded for development in Jan 2017; Board found remand complied with and proceeded.
- Medical timeline: no in-service diagnosis or complaints for squamous cell carcinoma; first post-service diagnoses recorded in 1999 (about eight years after separation).
- VA development: VA obtained and relied on a February 2017 VA medical opinion concluding it was less likely than not that the SCC was incurred in or caused by service or herbicide exposure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for squamous cell carcinoma (SCC) generally | SCC is related to Veteran's service, including herbicide exposure in Vietnam | No in-service diagnosis or continuity of symptomatology; medical evidence does not link SCC to service or herbicides | Denied — preponderance of evidence against service connection |
| Entitlement to herbicide-presumptive service connection | Veteran served in Vietnam and is presumed exposed to Agent Orange; SCC should be considered service-related | SCC is not on the list of presumptive herbicide-related conditions; presumption does not apply; direct causation not proven | Denied — presumptive framework inapplicable; direct causation not shown |
| Adequacy of VA medical opinion | Representative argued the VA opinion did not directly opine on etiology related to service | VA opinion reviewed file, identified risk factors, and expressly concluded SCC less likely than not related to service | VA opinion adequate and highly probative; duty to assist satisfied |
| Consideration of lay assertions and combat service under §1154(b) | Combat veteran status and lay statements support service connection | §1154(b) relaxes proof of in-service occurrence but does not substitute for medical nexus; lay opinion insufficient for medical etiology | §1154(b) applied to factual in-service matters but medical nexus still requires competent medical evidence; lay assertions insufficient |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (1998) (remand compliance standard)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (standards for adequacy of VA medical opinion)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (VA examiner must review claims file and provide rationale)
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (elements required for service connection)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology and chronic disease rules)
- Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996) (§1154(b) does not create presumption of service connection)
- Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (possibility of direct causation proof for non-presumptive conditions)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit-of-the-doubt rule standard)