Citation Nr: 21069057 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-03 701 DATE: November 17, 2021 ORDER Entitlement to service connection for metastatic malignant melanoma is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's currently diagnosed malignant melanoma is related to his military service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for metastatic malignant melanoma have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Service Connection In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for metastatic malignant melanoma The Veteran contends that his current malignant melanoma is causally related to his in-service exposure to severe sunlight and herbicides, specifically Agent Orange, during his active service duty in the Republic of Vietnam. As an initial matter, the Board finds that the competent medical evidence of record establishes a current disability of malignant melanoma, diagnosed in September 2015, according to private treatment records. Accordingly, the Board finds that the Veteran suffers from a current disability, satisfying the first element of his service-connection claim. Malignant melanoma does not fall under the presumption of service connection due to herbicide agent exposure. 38 C.F.R. § 3.309(e). However, the Veteran's inability to prevail on a presumptive basis does not foreclose his opportunity to prevail on a direct basis, as even if presumptive service connection is not available, the Board must consider whether service connection can be granted on a direct basis. Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Regarding the second element, an in-service injury or occurrence, the Board notes that the Veteran's exposure to sunlight and herbicides, including Agent Orange, is conceded by virtue of his in-country service in Vietnam. During the Veteran's Board hearing he credibly testified regarding his exposure to intense sunlight during his active-duty service. Accordingly, the Board finds that the second element necessary for a service-connection claim has been satisfied. As such, the primary contention in this case is with the element of nexus; that is, whether the Veteran's current melanoma disability is related to his active-duty service. The Veteran was not afforded a VA examination, however the Veteran submitted seven medical nexus opinions in support of his claim. In April 2019, a private physician confirmed that the Veteran was diagnosed with metastatic melanoma that was first diagnosed in 2015. The physician noted that there is no definitive evidence linking exposure to Agent Orange and melanoma, however melanoma is strongly associated with exposure to sunlight and sunburns. The physician noted that the Veteran had significant sun exposure and many sunburns during his service in Southeast Asia. The physician opined that the Veteran's history of exposure to the sun during his service is strongly associated with his melanoma. In July 2019, the Veteran's treating physician submitted a letter noting the Veteran's treatment history that led to a diagnosis of metastatic melanoma. The treating physician noted her belief that the Veteran's in-service exposure to sunlight is likely associated with his melanoma. The treating physician acknowledged that there is not enough conclusive evidence to associate the Veteran's Agent Orange to his melanoma, however she noted that the Veteran should be granted his service connection claim for melanoma. A September 2019 letter from a VA physician also confirmed that the Veteran had been diagnosed with metastatic malignant melanoma to the axillary lymph nodes in 2015. The Veteran reported a history of exposure of Agent Orange and severe sun exposure. The VA physician noted that melanoma has been strongly associated with intense sun exposure, while a link between Agent Orange and melanoma has been inconclusive. The VA physician concluded that the Veteran's exposure to sunlight and Agent Orange together are more likely than not the cause of his melanoma. A November 2019 letter from another VA physician also confirmed that the Veteran had been diagnosed with metastatic malignant melanoma. The VA physician noted that the Veteran had intense sun exposure during his active-duty service, to include exposure to Agent Orange. The VA physician noted that melanoma is associated with intense sun exposure and Agent Orange is under investigation to ascertain whether it is associated with melanoma. The VA physician concluded that the Veteran's sun exposure during active-duty service and Agent Orange exposure are more likely than not the cause of the Veteran's melanoma. In July 2021, two retired medical professionals submitted two letters and noted the Veteran's medical history of sunburns during boot camp and service due to daily exposure to sunlight and exposure to herbicides, to include Agent Orange, during his service in South Vietnam. The medical professional noted that severe sun exposure is known to cause the future development of melanoma. Additionally, the medical professionals noted that, while they cannot definitely say that Agent Orange caused the Veteran's melanoma, they can state that Agent Orange is a well-known carcinogen and that, through a series of biological manifestations, it more than likely contributed to the melanoma. In a July 2021, a private physician submitted a letter noting review of the Veteran's medical history. The physician noted that, while she has little experience or knowledge regarding the effects of Agent Orange, she has extensive knowledge on the effects of ultra-violet light causing melanoma. The physician noted that intense exposure to ultra-violet light, especially in a fair-skinned patient, is a risk factor for melanoma. The physician noted that the Veteran's service in Vietnam greatly increased his ultra-violet light exposure, and that there is a known lag time for ultra-violet light exposure to manifest itself as melanoma. The medical opinions are probative because they are based on review of the record and contain a clear conclusion with supporting data connected by reasoned medical explanations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30102 (2008). After considering all the facts in this case, the Board finds that the evidence of record is at least in relative equipoise as to whether the Veteran's current malignant melanoma is at least as likely due to his in-service conceded exposure to sunlight and herbicides, including Agent Orange. Consequently, since all of the elements of service connection are met, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for the Veteran's malignant melanoma is warranted in this case. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, Associate Counsel 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.