Citation Nr: 21069832 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 14-07 012A DATE: November 19, 2021 ORDER Entitlement to service connection for residuals of malignant melanoma is granted. REMANDED Entitlement to a rating of total disability based on individual unemployability (TDIU) prior to March 30, 2018, is remanded FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, malignant melanoma (status post multiple excisions), is related to his active duty service. CONCLUSION OF LAW The criteria for service connection for residuals of malignant melanoma are met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1972 to January 1974, July 1991 to May 1992, May 1995 to August 1995, March 1996 to July 1996, October 1996 to April 1997, August 2000 to April 2001, March 2003 to July 2004, and May 2005 to September 2005. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board remanded the issue on appeal for evidentiary development in May 2018, August 2020, and March 2021. Notably, this appeal initially encompassed claims for entitlement to an initial compensable disability rating for bilateral hearing loss and entitlement to an initial disability rating in excess of 10 percent for arthritis of the left knee. These claims were denied by the Board in an August 2020 decision. At that time, the Board also determined that a TDIU claim had been raised pursuant to Rice as part and parcel of the initial increased rating appeal for the Veteran's left knee condition. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board then remanded the TDIU claim for development and adjudication. In March 2021, the Board determined that the TDIU issue was inextricably intertwined with the issue of entitlement to service connection for melanoma and again remanded the claim. In an August 2021 rating decision, the RO granted a TDIU effective March 30, 2018. This grant did not encompass the entirety of the period on appeal. Accordingly, entitlement to a TDIU prior to March 30, 2018, is still before the Board and is inextricably intertwined with the claim granted herein; and therefore, the claim must be remanded as indicated below. Entitlement to service connection for residuals of melanoma. The Veteran alleges that his melanoma is related to sun exposure during service, exposure to winter conditions in Germany from 1972 to 1974, as well as by sun and environmental exposures in Southwest Asia in 1990's and 2000's. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, such as malignant tumors are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). However, the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Factual Background and Analysis The evidence, including April 2013 and December 2020 VA examinations and private dermatological reports, reflect that the Veteran had malignant melanomas excised in approximately 2002 and 2010. The VA examinations conducted during the appeal period show residual scarring to these areas. Service treatment records, military personnel records, and statements from the Veteran (and buddy statements) show that the Veteran was a ski instructor in Germany during his first period of active duty service, from approximately 1972 to 1974. DD Forms 214 also reflect that he served on active duty in Saudi Arabia and Kuwait from July 1991 to March 1992 and in Kuwait and Iraq from June 2003 to May 2004. The Veteran underwent a physical in association with his Application for Active Duty (see December 2002 DA Form 160-R) in December 2002 which reflects the following: "Pt has numerous hypertrophic, hyperpigmented lesions to trunk, back and abdomen. There are over 15 lesions probably dysplastic nevi to back, varying in color from tan to dark brown and red." The examiner goes on to describe lesions on the mid-abdomen, right upper arm, and left upper arm. The Veteran was scheduled for a follow-up with dermatology with respect to "multiple dysplastic nevi." Sunscreen was advised. In a February 2010 letter, a private dermatologist, F.W., stated that he had been treating the Veteran for skin cancer since December 2004; the dermatologist noted that melanoma was excised from the Veteran's right arm in 2002 and from the left lower leg in April 2010. He stated, "Melanoma has been shown to be related to sun exposure, especially sunburns in the past." A March 2010 private dermatology note reflects irregular brown papules (atypical nevus) of the left lower leg and left upper arm. It also shows that he had a malignant melanoma of the right arm excised in 2002. An April 2010 private biopsy report confirms malignant melanoma of the left lower leg (malignant melanoma in situ arising in pre-existing dysplastic nevus). In a June 2010 statement, the Veteran reported that he had two operations in 2002 where positive cancer cells were removed and again after two overseas tours in Iraq. In a February 2011 statement/NOD, the Veteran reported that he sustained "extreme" sunburn while serving in Desert Storm and that his moles started to change color upon his return home. A March 2004 Post-Deployment Assessment reflects that the Veteran endorsed sun exposure while serving in Kuwait, Qatar, and Iraq. The Veteran underwent a VA skin examination in April 2013. The examiner opined that it was less likely than not that the skin condition was incurred in or caused by in service injury. The examiner stated, "It is true that sun exposure is one of the risk factors for the development of melanoma. However, it would be pure speculation to state that it is the sun exposure during active duty time that led to the Veteran's melanoma, versus lifetime exposure among other risk factors (genetics, skin phenotype, etc.). This opinion was later deemed inadequate by the Board. See May 2018 Remand. In a November 2016 statement, the Veteran again explained the circumstances around his in-service sun exposure, noting that he was on ski patrol in Berchtesgaden, Germany, from 1972 to 1974 and deployed on active duty in connection with Desert Storm to Kuwait and Saudi Arabia from March 1991 to February 1992. In an October 2019 addendum opinion, a VA examiner opined that the melanoma was less likely than not incurred in or caused by service. The examiner reasoned the following: "According to the Mayo Clinic, melanoma can develop anywhere on the body. While it is thought that some melanoma may be due to exposure to the sun, the disease can also occur in areas that have never been exposed to the sun. It is thought that melanoma is caused by exposure to UV light but there is genetics at play as well as it is seen more often in people with fair skin, a family history of melanoma and a weakened immune system. It is also more prevalent in persons living along the equator, so the fact that he had a mole removed in Germany and Germany is not near the equator, it would be less likely than not that Germany caused the melanoma. Also, there is nothing that suggests that exposure to burn pits would cause a melanoma." The Board, thereafter, sought an additional medical opinion in August 2020. See August 2020 Remand. In December 2020, a VA examiner opined that the claimed melanoma condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned the following: "Veteran has had various active duty service enlistments combining to about 5-6years. Although he served as a ski instructor and served time in Iraq, which both would have included more sun exposure, it would be speculation to state whether these 5-6 years of active duty accounted for more than 50 percent likelihood to cause his melanoma as opposed to much longer service in Reserves (near 38 years with some active duty enlistments in between) vs. other factors (e.g., genetics, skin phenotype, etc.)." The examiner further opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reasoned the following: "The claimed condition is less likely than not (less than 50 percent probability) due to the veteran's service between 2003 to2004 and then 2004 to 2005. Although he served in greater sun exposed areas such as Iraq during this time, veteran was already diagnosed with melanoma prior to this time, and had already been in Reserves since 1978. Due to the fact that it was a very short duration during those 2 service dates, it would be speculation that it would've aggravated beyond natural progression." In its March 2021 remand, the Board determined that the previously obtained VA medical opinions were inadequate to the extent that they did not meaningfully discuss why it would be speculation to offer an opinion(s). In a June 2021 addendum opinion, a VA examiner opined that the melanoma was less likely than not incurred in or caused by service. The examiner reasoned the following: "There is no documentation of biopsies performed while in-service. There is one biopsy report that was dated 04/26/2010...The impression of that biopsy left a diagnosis of malignant melanoma Breslau's thickness 0.55 mm from the left lower leg. There is no evidence of metastasis or returned melanoma documented in a file at this time. Therefore, I cannot establish a nexus with presented information at this time. I also cannot establish an ongoing disease process that is an active disease process at this time." Based on a careful review of all the subjective and clinical evidence, and in resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for residuals of malignant melanoma is warranted. With respect to the current disability requirement, the medical record confirms current residuals of melanoma, to include residual scarring, status post excisions. See December 2020 VA Skin Examination. With respect to in-service disease or injury, as noted, the Veteran had numerous periods of active duty service from 1972 to 2005 (with intervening periods of reserve service). Service treatment/personnel records confirm that he served on active duty in Iraq, Kuwait, and Saudi Arabia in the early 1990's and 2000's and the Veteran has competently and credibly reported that he was exposed to excessive sun and experienced sunburns while serving in these areas. He also reported that his moles changed in color/appearance after deployments to Southwest Asia. STRs further show that the Veteran endorsed sun exposure in March 2004 following his deployments to Kuwait, Qatar, and Iraq (from June 2003 to May 2004). The Board has no reason to doubt the veracity of the Veteran's statements with respect to in-service sun exposure and the onset of his skin problems as they have been consistently reported throughout the record; they are likewise consistent with the facts and circumstances of his service. With respect to nexus, the Board notes that, despite the Board's numerous attempts, an adequate medical opinion has not yet been obtained. As noted, the Board has remanded this claim on three occasions for addendum VA opinions. The most recently obtained opinion from June 2021 continues to be inadequate as the examiner declined to address the medical questions posed based on the lack of evidence of "metastasis or returned melanoma." Therefore, the Board is left with the Veteran's competent and credible statements as to the onset/continuity of his skin problems, including his reports of sunburns and mole changes (which are capable of lay observation) during and following periods of active duty service in Southwest Asia; objective evidence of atypical moles (or, dysplastic nevi) and malignant melanoma diagnoses as early as 2002 and as recently as 2010; and statements from the Veteran's private dermatologist noting treatment for malignant melanomas since December 2004 and through 2010 and relating such (albeit, generally) to past sun exposure and sunburns. In light of the foregoing, and in resolving all reasonable doubt in favor of the Veteran, the Board finds the medical and lay evidence taken together is sufficient to establish that the currently diagnosed malignant melanoma residuals are at least as likely as not related to a period(s) of active duty service, including prolonged sun exposure therein. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim, but such would not materially assist the Board in this determination at this juncture. Accordingly, his claim for service connection for residuals of malignant melanoma is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(d), 38 C.F.R. § 3.307(a)(3), 3.309(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a TDIU prior to March 30, 2018. The Board has granted service-connection for residuals of malignant melanoma, as addressed above. As the RO has yet to assign a rating for that condition, the Board cannot determine whether or not the Veteran meets the schedular criteria for TDIU for the period prior to March 30, 2018. Neither has the RO issued a rating decision which fully assesses the Veteran's TDIU claim in consideration of a service-connected melanoma disability. Therefore, consideration of the claim for TDIU must be remanded pending the assigned rating and effective dates of the newly granted service-connected disability by the RO. The matters are REMANDED for the following action: After rating the claim of entitlement to service connection for residuals of malignant melanoma, granted herein, and assigning rating(s) and effective date(s), determine what further development is necessary to ensure that the record is adequate to decide whether the Veteran's service-connected disabilities prevent the Veteran from obtaining and maintaining gainful employment. Then, readjudicate the claim for TDIU for the period prior to March 30, 2018. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hoeft 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.