Citation Nr: 21070850 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 15-25 939 DATE: November 26, 2021 ORDER Entitlement to service connection for malignant melanoma is denied. Entitlement to service connection for a disfiguring scar, right lower back, to include as due to malignant melanoma and/or secondary to service-connected granulomatous disease is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that malignant melanoma began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran's disfiguring scar, right lower back is not related to or aggravated by a service-connected disability, and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for malignant melanoma are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.655. 2. . The criteria for service connection for a disfiguring scar, right lower back, to include as due to malignant melanoma and/or secondary to service-connected granulomatous disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310, 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1977 to June 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran was afforded a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. This case was remanded in April 2019 and April 2021. In April 2021, the Board remanded the claims to provide the Veteran with additional VA examinations. There is documentation in the file that the Veteran contacted the VA medical center after being scheduled for an additional VA examinations, and advised that he did not want to continue with his claims. The examinations scheduled pursuant to the April 2021 Board remand directives were cancelled. In an October 2021 BVA letter, the Board sought clarification on whether the Veteran wanted to withdraw his claims. The Veteran was notified that in the absence of a formal motion to withdraw the Veteran's application within 30 days from the date of the letter, the Board will resume appellate review. To date, the Board has received no response. Therefore, the matters remain before the Board for appellate consideration. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). As noted, the Board remanded the appeal in April 2021 to schedule the Veteran for an additional VA examination to address prior inadequate opinions. The RO attempted to schedule an examination in May 2021; however, the record indicates that the examination was cancelled because the Veteran declined the examination and indicated to the VA that he wanted to cancel his claims at that time. Under 38 C.F.R. § 3.655 (a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655 (b) or (c) as appropriate. Specifically, when a claimant fails to report for a medical examination scheduled in conjunction with an original compensation claim, without good cause, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655 (b). The Veteran's failure to cooperate with VA made it impossible to obtain the evidence that was the aim of the planned examinations and his claims must be rated on the evidence of record. Accordingly, the Board must decide the claims based on the evidence of record. 38 C.F.R. § 3.655 (b), (c). The Board emphasizes that the duty to assist a claimant is not a one-way street, and in this case the Veteran has failed to cooperate in the development of his claims. Wood v. Derwinski, 1 Vet. App. 406 (1991); 38 C.F.R. § 3.655. 1. Entitlement to service connection for malignant melanoma The Veteran contends that his malignant melanoma is a result of his active military service. Specifically, the Veteran testified that his condition developed after many years of direct sun exposure in service, while performing military duties in various deployment locations, to include Korea and Texas. The Veteran expressed that as an infantryman, he was constantly in sunlight. The Veteran expressed that he developed a sunspot in service while digging foxholes and equipment. The Veteran testified that he did not wear protective clothing while exposed to the sun. The Veteran stated that he was never given sunscreen in service and that he could not go on sick call for a sun burn because he would have been threatened with an Article 15. In addition, the Veteran testified that no one in his family has melanoma. The Veteran's DD Form 214 shows that the Veteran's military occupational specialty was that of a heavy anti-armor weapons infantryman. Therefore, sun exposure is conceded. In a September 2013 VA treatment record, the Veteran was noted to have his melanoma removed 8 weeks prior. It was reported that the Veteran was a runner and runs marathons. In its April 2019 remand, the Board requested a VA examination that specifically addressed the Veteran's contentions that his malignant melanoma developed as a result of many years of direct sun exposure in service while not wearing protective clothing and sunscreen. The Veteran was afforded a VA examination in December 2019. The examiner indicated that the Veteran has a current skin condition of melanoma, right lower back, s/p surgical excision. The examiner reported that on active duty, the Veteran was in the infantry and the Veteran indicated that he had a lot of sun exposure. The examiner noted that the Veteran's medical records show that the Veteran had a skin biopsy of the right back in 2013 that was positive for melanoma. The examiner noted that no recurrence of melanoma has been found since the 2013 wide excision. The examiner expressed that according to Up-to-Date medical resource website, melanoma is associated with sunburns, however, the examiner noted that no active-duty medical records document any sunburn treatments. The examiner noted that the Veteran reported in his VA testimony that the military threatened with an Article 15 if the Veteran was seeking treatment for severe sunburns. The examiner also stated that there are multiple risk factors for melanoma, such as ethnic background, skin type, and genetic background. Thus, the examiner opined that while sun exposure is a risk for melanoma, there are multiple risk factors for melanoma, and it is not possible to specifically state what the major cause of the Veteran's melanoma, which was diagnosed 27 years after leaving active duty. Therefore, the examiner concluded that it is less than 50 percent likely that the claim for malignant melanoma was incurred in, or caused by sun exposure during active duty, or not wearing protective clothing or sunscreen on active duty, or had its onset on active duty. After review of the December 2019 VA medical opinion, the Board requested an additional VA examination. However, as noted above, the Veteran declined an additional examination in a May 2021 telephone call to VA, and never tried to contact the RO to re-schedule the examination. After carefully reviewing the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for malignant melanoma. Here, there is no evidence of record that the Veteran developed malignant melanoma in service, and the only medical opinion of record is against a finding that the Veteran's malignant melanoma is related to his service, to include a result of sun exposure without protection. The only positive evidence of record are the Veteran's lay statements. In this regard, the Board acknowledges that the Veteran is competent to relate symptoms of sunburns within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As noted above, the Board accepts the Veteran's lay contentions of exposure to sun. However, the question of whether his malignant melanoma was incurred in service or is otherwise related to in-service sun exposure is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins). In short, because the evidence does not indicate that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning the etiology of his malignant melanoma, he is not competent to comment on its etiology. He has provided no additional objective evidence in support of service connection for his claimed disability, and he failed to communicate with the RO concerning a new examination. Additionally, the Board is aware that its April 2021 remand stated that the December 2019 VA opinion regarding the Veteran's malignant melanoma was inadequate to support a decision. Although the Board previously found this medical opinion to be inadequate, it the only medical opinion associated with the claims file regarding a nexus between the Veteran's malignant melanoma and his time in service. Due to the Veteran's failure report to the VA examination, the Board must rely on the evidence of record to adjudicate the claim. Unfortunately, the Veteran has not put forth sufficient competent evidence to warrant a grant of service connection in this matter. He is not competent to substantiate his contentions, and there is no other credible evidence substantiating the claim. To reiterate, the Veteran has not presented or identified any competent medical evidence to support his contention that his current diagnosis is directly related to his military service. There is likewise no evidence that the disability developed within one year of the Veteran's separation from service, nor is there is competent evidence of continuous symptoms since service. See 38 C.F.R. § 3.303(b). As such, the preponderance of the evidence weighs against finding in favor of service connection. For the reasons stated above, service connection for malignant melanoma must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a disfiguring scar, right lower back, to include as due to malignant melanoma and/or secondary to service-connected granulomatous disease The Veteran is seeking service connection for a disfiguring scar as secondary to the Veteran's malignant melanoma. In addition, the Veteran asserts that his scar was aggravated by his service-connected granulomatous disease. The Veteran testified that his condition affects his skin and the Veteran's ability to heal quickly from bruises and cuts. As a result, the Veteran's scar took forever to heal up and just ripped open. The Veteran was afforded a VA examination in December 2019. The Veteran was diagnosed with surgical scar, right lower back. The examiner stated that in 2013, the Veteran had surgical wide excision of malignant melanoma, right lower back and that the Veteran developed a post-operative wound infection which delayed healing. The examiner expressed that this surgical scar is not related to his granuloma disorder, and there is no evidence that this condition affects the Veteran's healing ability. Thus, the examiner opined that it is less than 50 percent likely that the disfiguring surgical scar right back was aggravated beyond natural progression by any service-connected disorders, including the granuloma. The examiner also stated that the disfiguring scar was the result of a wound infection after melanoma excision, and is not related to the melanoma itself. Thus, the examiner opined that it is less than 50 percent likely that the claim for disfiguring scar, right back is proximately due to, or the result of, or aggravated by, his malignant melanoma or service-connected disabilities, and is not related to any impairment of ability to heal. After carefully reviewing the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a disfiguring scar as secondary to the Veteran's malignant melanoma and/or granulomatous disease. As noted above, secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). As the Veteran is not service connected for malignant melanoma, secondary service connection for a disfiguring scar, right lower back as due to malignant melanoma is not warranted. 38 C.F.R. § 3.310. However, the Veteran has provided an alternative theory of entitlement to service connection for a disfiguring scar, right lower back, which is that his disfiguring scar, is aggravated by his service-connected granulomatous disease. Here, the December 2019 VA examiner expressed that the Veteran's surgical scar is not related to his granuloma disorder, and there is no evidence that this condition affects the Veteran's healing ability. Thus, the examiner opined that it is less than 50 percent likely that the disfiguring surgical scar right back was aggravated beyond natural progression by any service-connected disorders, including the granuloma. In view of the December 2019 opinion, the Board must find that entitlement to service connection for a disfiguring scar as secondary to the Veteran's service-connected granulomatous disease is not established. The only medical opinion of record that addresses the etiology of this disability is negative. While the Veteran is competent to report that his scar did not heal quickly, there is no evidence that he has any medical training or is otherwise competent to offer an opinion as whether or not his disfiguring scar is related to his granulomatous disease, or whether or not it was aggravated. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As the only competent medical opinion weighs against aggravation on a secondary basis, the preponderance of the evidence is against entitlement to service connection for a disfiguring scar, right lower back. The Board is aware that its April 2021 remand stated the December 2019 VA opinion regarding the Veteran's disfiguring was inadequate to support a decision. Although the Board previously found this medical opinion to be inadequate, it the only medical opinion associated with the record regarding a nexus between the Veteran's disfiguring scar and the Veteran's secondary contentions. The Veteran was given the opportunity to obtain an additional VA examination, however, due to the Veteran's failure to report to the VA examination, the Board must rely on the evidence of record to adjudicate the claim. See 38 C.F.R. § 3.655. For the reasons stated above, service connection for a disfiguring scar, right lower back must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.