Citation Nr: 21070099 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-08 714 DATE: November 23, 2021 ORDER Entitlement to service connection for skin cancer, to include as due to in-service exposure to herbicide agents is denied. Entitlement to service connection for a low back disability is denied. FINDINGS OF FACT 1. The Veteran's melanoma was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's low back disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for skin cancer, to include as due to in-service exposure to herbicide agents have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from June 1966 to January 1970. He had additional service in the Reserves. These matters are on appeal from February 2013 and July 2015 rating decisions. In January 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A transcript of the proceeding is associated with the record. In May 2019, the Board remanded the issues of entitlement to service connection for skin cancer, a low back disability, a bilateral hearing loss disability, and tinnitus for additional evidentiary development. In October 2020, the Agency of Original Jurisdiction (AOJ) granted service connection for a bilateral hearing loss disability and tinnitus. This is a full grant of the benefits sought regarding these claims and, as a result, are no longer on appeal before the Board. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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 will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for skin cancer, to include as due to in-service exposure to herbicide agents. In January 2019, the Veteran testified that his skin cancer was caused by exposure to herbicide agents during active service. Melanoma is not among the diseases that are entitled to presumptive service connection due to herbicide exposure. 38 § C.F.R. 3.309(e). However, when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Additionally, where a Veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. Malignant tumors are among the listed diseases for which this presumption is warranted. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In the present case, the Veteran's service treatment records are negative for any complaints, treatment or diagnosis melanoma, or any similar carcinoma of the skin. The Veteran also did not seek treatment during service for any type of skin disorder. His December 1969 service separation examination report indicated the Veteran's skin was normal on clinical evaluation. In July 2020, the Veteran was afforded a VA skin examination. The VA examiner reported that the Veteran was diagnosed with melanoma of the back in September 1999. The Veteran reported that his back mole developed two years prior to his September 1999 visit. After reviewing the record and relevant medical literature, the VA examiner opined that the Veteran's history of melanoma was less likely than not incurred in or caused by his active military service, to include his presumed exposure to herbicide agents. She elaborated that the medical literature identified the Veteran's risk factors as his hair color, eye color, freckling, poor tanning ability, and genetics. Finally, the Veteran did not endorse signs or symptoms related to melanoma until 27 years after his separation from active service. There are no positive medical opinions of record. Based on this evidence, the Board concludes that the Veteran's melanoma did not begin during service or within a year after service and has not been chronic and continuous since that time. The Veteran's contentions have included that his melanoma is the result of herbicide exposure. As noted, service connection is not, by regulation, granted on a presumptive basis for melanoma as a result of herbicide exposure. See 38 C.F.R. § 3.309(e). While the Veteran is not barred from presenting evidence of such a nexus, he has not done so in the present case; that is, he has presented no competent evidence indicating an etiological nexus between any incident of service, to include herbicide exposure, and his melanoma. As the competent evidence of record indicates that the Veteran's melanoma did not have its onset during service, did not manifest to a compensable degree within a year thereafter, has not been chronic since service, and is not the result of an incident of service, to include herbicide exposure, therefore service connection for skin cancer must be denied. Furthermore, the Veteran is not competent, as a lay person, to state that etiology of his melanoma. An opinion of etiology would require knowledge of the complexities of dermatology, the various causes of skin disorders, and the results of exposure to various chemicals, and such knowledge the Veteran is not shown to possess. Accordingly, the Board finds that a preponderance of the evidence of record weighs against the claim for service connection for skin cancer and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a low back disability. In January 2019, the Veteran testified that had experienced back pain since active service. He attributed the pain to heavy lifting. He was diagnosed with arthritis of the back in 2000. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of degenerative disc disease of the lumbar spine. Although the Veteran's service treatment records are silent for treatment related to back pain, the Veteran is competent to report that he experienced back pain during his active service. The preponderance of the evidence weighs against a finding that the Veteran's diagnosis of degenerative disc disease of the lumbar spine began during service or is otherwise related to an in-service injury, event, or disease. In November 2020, the Veteran was afforded a VA back examination. The VA examiner diagnosed degenerative disc disease of the lumbar spine. A December 1997 CT indicated degenerative joint disease of the back. The Veteran reported that his back symptomatology began in 1988 with heavy lifting. The VA examiner opined that it was less likely than not that the Veteran's low back disability was related to his active service. The VA examiner cited the Veteran's reported 1988 onset of back pain and a lack of medical documentation in the record. The VA examiner concluded that the only evidence in support of his assertion was his testimony. There are no positive medical opinions of record. The only evidence in support of the Veteran's claim is his hearing testimony, which he contradicted at his VA examination. The Board finds the Veteran's hearing testimony to be of limited probative value, because he contradicted these statements during his VA examination. The Board finds the VA opinion of record to be probative. The VA examiner examined the Veteran, conducted an interview, and reviewed the record. The associated opinion explicitly considers the Veteran's lay statements. As the competent evidence of record indicates that the Veteran's degenerative disc disease did not have its onset during service, did not manifest to a compensable degree within a year thereafter, has not been chronic since service, and is not the result of an incident of service, therefore, service connection for skin cancer must be denied. Accordingly, the Board finds that a preponderance of the evidence of record weighs against the claim for service connection for a low back disability and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.R. Watkins, 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.