Citation Nr: 1803176 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-06 512 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Entitlement to service connection for malignant melanoma of the left shoulder area, including as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD E. Blowers, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from December 1965 to December 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the RO in Indianapolis, Indiana, which, in pertinent part, denied service connection for malignant melanoma. The Veteran testified from Indianapolis, Indiana, at an October 2017 Travel Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. FINDINGS OF FACT 1. During the course of this appeal the Veteran was diagnosed with malignant melanoma or residuals thereof. 2. During service the Veteran experienced regular and severe sun exposure while stationed in California and in the Republic of Vietnam. 3. The currently diagnosed malignant melanoma is related to the Veteran's in-service sun exposure. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for malignant melanoma have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326(a). As the instant decision grants service connection for malignant melanoma, which is a complete grant as to the issue on appeal, no further discussion of VA's duties to notify and assist is necessary. Service Connection for Malignant Melanoma Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, malignant melanoma (as a malignant tumor) is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309(c), 3.313 (2017). This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(c). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). The Veteran asserts that currently diagnosed malignant melanoma and any residuals thereof are related to service. Specifically, the Veteran contends that the melanoma developed as a result of regular and severe sun exposure during service. In the alternative, the Veteran has advanced that the melanoma was caused by exposure to the herbicide Agent Orange while stationed in the Republic of Vietnam. Initially, the Board notes that VA and private treatment records reflect that the Veteran underwent resection of a malignant melanoma of the left shoulder in March 2010. Subsequently, also in March 2010, the Veteran underwent an axillary dissection of the malignant melanoma of the left shoulder. In January 2011, the Veteran underwent excision of the metastatic melanoma in the left posterior shoulder. A re-excision of the metastatic melanoma in the left posterior shoulder was subsequently performed in January 2011. The evidence of record, including photographs, conveys that the Veteran has residual scarring from these procedures. As such, the Board finds that during the course of this appeal the Veteran was diagnosed with malignant melanoma of the left shoulder and/or residuals thereof. Next, the Board finds that during service the Veteran experienced regular and severe sun exposure while stationed in California and in the Republic of Vietnam. Service personnel records convey that during service the Veteran was stationed in both California and the Republic of Vietnam. At the October 2017 Travel Board hearing, the Veteran credibly testified to spending at least two hours per day in the sun and out of full uniform. Per a November 2017 private oncologist opinion report, both the frequency and intensity of exposure in both California and the Republic of Vietnam was significant enough to result in malignant melanoma. After a review of all the evidence of record, both lay and medical, the Board finds that the evidence is at least in equipoise as to whether the currently diagnosed malignant melanoma is related to the Veteran's in-service sun exposure. In November 2017, VA received a private medical opinion from the Veteran's oncologist addressing the relationship between the Veteran's in-service sun exposure and the previously treated malignant melanoma. Per the private opinion, excessive sun exposure, such as the Veteran's in-service sun exposure, is recognized as the greatest risk for developing melanoma. Additionally, the evidence did not show that the Veteran had any other significant known risk factors for developing melanoma. The private oncologist also cited to a medical study showing a rise in melanoma among service members. Based on the facts and findings, the private oncologist opined that it was at least as likely as not that the malignant melanoma was due to sun exposure during service. The Veteran is currently diagnosed with malignant melanoma or residuals thereof, and during service the Veteran experienced regular and severe sun exposure while stationed in California and in the Republic of Vietnam. A private oncologist has opined that the malignant melanoma was related to the in-service sun exposure. No opinion to the contrary has been received. As such, resolving reasonable doubt in the Veteran's favor, the Board finds that malignant melanoma to the left shoulder area, including residual scarring, was incurred in active service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection has been granted on a direct basis, there is no need to discuss entitlement to service connection on a presumptive or any other basis as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104 (2012). ORDER Service connection for malignant melanoma of the left shoulder, including residual scarring, is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs