Citation Nr: 18157690 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-40 682A DATE: December 13, 2018 ORDER Entitlement to service connection for malignant melanoma-in-situ of left mid-back and malignant melanoma of right forearm is denied. FINDING OF FACT 1. The Veteran failed to report for a VA skin examination scheduled in May 2018. 2. The preponderance of the available evidence is against finding that the Veteran has skin cancer/residuals of skin cancer due to a disease or injury in service, to include sun exposure in service. CONCLUSION OF LAW The criteria for service connection for malignant melanoma-in-situ of left mid-back and malignant melanoma of right forearm are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Coast Guard from June 1966 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The claim is now properly before the RO in St. Petersburg, Florida. Separate from the current claim on appeal, the Veteran submitted a Notice of Disagreement (NOD) in June 2011 with a noncompensable rating provided for his service-connected Horner’s syndrome in a July 2010 rating decision. On his NOD, the Veteran noted that his Horner’s syndrome resulted in vertigo and requested a “compensable rating.” The RO issued a Statement of the Case (SOC) in August 2013, again denying a compensable rating for Horner’s syndrome based on visual acuity and disfigurement. The SOC did not directly address the Veteran’s complaints of vertigo. In September 2013, the Veteran’s representative submitted a substantive appeal seeking a “compensable rating” for Horner’s syndrome and providing argument that the Veteran met the criteria for a 30 percent rating due to disfigurement. The representative additionally argued for secondary service connection or a separate rating for vertigo due to his Horner’s syndrome. In a March 2018 rating decision, the RO granted an increased 30 percent rating for the Veteran’s Horner’s syndrome, effective August 27, 2009. The rating decision noted that this was considered a full grant of the issue on appeal. The 30 percent rating was provided based on the disfigurement criteria, and did not mention the Veteran’s complaints related to vertigo. As the Veteran’s NOD and substantive appeal were received prior to March 24, 2015, they may be accepted as informal claims. REFERRED The issue of entitlement to service connection for vertigo, to include as secondary to Horner’s syndrome, was raised in June 2011 and September 2013 statements and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. 1. Entitlement to service connection for malignant melanoma-in-situ of left mid-back and malignant melanoma of right forearm The Veteran argues that he is entitled to service connection for his skin cancer/residuals due to sun exposure he received during his service in the U.S. Coast Guard. The Veteran served for 4 years, and his last duty assignment was at the Sandy Hook Coast Guard Station in Middletown, New Jersey. A VA examination was scheduled in May 2018. The Veteran failed to report to the examination, and has not shown good cause for not attending the scheduled examination. 38 C.F.R. § 3.159 (c)(4). Accordingly, the Board finds that VA’s duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A review of the Veteran’s service treatment records includes that he entered service in sound condition as related to his claim for skin cancer on appeal. There are no service treatment records related to sun burns or relevant skin conditions. The Veteran’s April 1970 medical examination, prior to separation, noted a normal skin evaluation, except for scars to the chin and knees. Post-service treatment records include several records related to skin cancer. In December 2012, the Veteran was found to have malignant melanoma of the right forearm and malignant melanoma in situ of the back. In January 2013, he reported that he first noticed a change in the size and texture of his right forearm mole one year prior, and he reported in November 2012 that the mole was bleeding with even minor trauma. He saw a dermatologist who additionally found the worrisome lesion on his back. After biopsy, he has surgeries to remove the cancerous lesions in February 2013. The malignant melanoma on his right forearm was of a substantial enough size to require a skin graft from his thigh. In 2014 and 2016, the Veteran had additional biopsies and excisions for skin cancers (basal cell carcinoma and squamous cell carcinoma) of the right forearm and over the right eyebrow. The VA treatment records do not specifically state the cause of the Veteran’s skin cancers, but he is warned throughout his dermatology treatment that he must wear sun protection and sun screen whenever he is outside. Additionally, his dermatology treatment includes notations of “photodamaged skin on sun-exposed areas,” “marked solar elastosis,” and “significant sun damage to exposed skin.” In May 2013, the Veteran submitted an internet article related to melanoma and skin cancer. It noted that “13 million white non-Hispanics living in the US at the beginning of 2007 had at least one nonmelanoma skin cancer,” and that one in five Americans will develop skin cancer in their lifetime. The article also noted that melanoma accounted for less than five percent of skin cancer cases, but that it was still one of the five most common cancers in the U.S. and that “about 86 percent of melanomas can be attributed to exposure to ultraviolet radiation from the sun.” It also noted that a person’s risk for melanoma doubled if he had more than five sunburns at any age. The article included that “contrary to popular belief, 80 percent of a person’s lifetime sun exposure is not acquired before age 18, only about 23 percent of lifetime exposure occurs by age 18.” It includes a charge which noted that by age 40, a person had accumulated 46.53 percent of their lifetime sun exposure, and 73.7 percent of their lifetime exposure by age 59. The Board notes that the Veteran was 22 years old when he was discharged from service, and was 64 years old when he reported the changes in his right forearm mole (for the past year). Additionally, post-service treatment records included that the Veteran lived and worked in Guatemala for 20 years. His employment was noted to be, variably, as a “roofer” (May 2011 VA treatment record), in construction/as a “builder” (April 2010 VA treatment record establishing care while he was visiting Florida from Guatemala), and working part-time on a farm (May 2010 VA examination related to his Horner’s syndrome claim). As noted above, the Veteran failed to report to a scheduled VA skin examination in April 2018. The Veteran and his representative did not make a subsequent statement related to his claim, to include providing any good cause as to why he did not report to the examination. The Board notes that although the Veteran lived on and off in Guatemala over the years, that he was residing in Florida in 2018. VA treatment records from the St. Augustine CBOC are dated as late as March 2018, and VA letters to the Veteran’s Florida address from October 2018 were not returned to sender. The Board notes that the June 2018 SSOC which noted the missed examination was sent to the Veteran’s current (Florida) address and that a copy was sent to his representative. His representative has provided statements based on the Veteran’s separate (not on appeal) claim related to additional dependent benefits, but did not make any arguments related to the Veteran’s skin claims or provide any statements of good cause for missing the scheduled examination. The Board finds that the Veteran failed to report to the scheduled May 2018 VA examinations without good cause. 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, such things as the illness or hospitalization of the claimant, or death of an immediate family member. 38 C.F.R. § 3.655 (a). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. As the Veteran failed to report to the April 2018 VA examinations, the record does not contain a medical nexus opinion. The Board must make its decision based on the available evidence of record. The available evidence shows that the Veteran entered and exited service without any notations of skin lesions, and without any treatment for sunburns. At some point after service, the Veteran moved to Guatemala and had a career related to building, in either construction or roofing, and possibly also part-time as a farm hand. This would indicate that post-service the Veteran had a career which included daily sun exposure. Treatment records from 2012 onward noted that the Veteran had marked solar elastosis, which is a disorder in which the skin appears yellow and thickened as a result of sun damage. The internet article provided by the Veteran indicated that skin cancer was often due to sun exposure, and that by age 18 most people had accumulated 23 percent of their lifetime sun exposure. The Veteran’s military service for 4 years would have been a small percentage of his lifetime sun exposure, and given uniforms it would have been an even smaller percentage of sun exposure to his forearms and back. Likely, the Veteran would have suffered the greatest amount of ultraviolet radiation (sun exposure) during his 20 years of working outside and living in Guatemala. The preponderance of the available evidence is against the Veteran’s claim of entitlement to service connection for malignant melanoma of the right forearm and malignant melanoma in situ of the back (and his additional skin cancers). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel