Citation Nr: 21077550 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 19-27 711 DATE: December 30, 2021 ORDER Service connection for skin cancer is granted. FINDING OF FACT Skin cancer was incurred in service, to include prolonged in-service exposure to sunlight. CONCLUSION OF LAW The criteria for service connection for skin cancer have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1974 to March 1977. He testified during a July 2021 virtual hearing. A transcript of this proceeding has been associated with the record. Service Connection The Veteran is currently pursuing direct service connection for skin cancer. The Board will limit its analysis accordingly. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). With respect to the first element, the evidence clearly establishes the existence of a current disability. Historically, the Veteran was diagnosed with melanoma in April 2017. He underwent surgical intervention, after which he experienced residual symptoms including headaches and fatigue. The claims file contains a series of photographs documenting the Veteran's skin cancer and related treatment. During the July 2021 hearing, the Veteran also offered competent testimony that his melanoma had returned, albeit in a different physical location (specifically, his back instead of his head). Collectively, this evidence establishes the existence of a current disability, such that the first element of direct service connection is met. With respect to the second element, the Veteran attributes his current disability to in-service exposure to sun and various solvents. See, e.g., July 2021 hearing transcript. Generally, a veteran is competent to report that which he perceives through the use of his senses, including in-service exposures. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, this Veteran's testimony is well-documented throughout the record and consistent with the nature of his military occupational specialty (MOS) as a boatswain's mate, which would reasonably require extensive work on the flight deck. Miller v. Wilkie, 32 Vet. App. 249 (2020); see, e.g., July 2021 hearing transcript. There is also a significant body of evidence which directly corroborates the Veteran's testimony, including multiple articles regarding the link between military service and skin cancer, and buddy statements detailing the purported exposures. See, e.g., articles received in September 2018, June 2019, and June 2020; lay statements received in August 2017, September 2017, and June 2020. Notably, there is no evidence of record which contradicts the Veteran's testimony on this point. In affording the Veteran the benefit of the doubt, the second element of direct service connection is also met. As to the third and final element, there are multiple nexus opinions for consideration. Weighing against the claim is an August 2018 VA nexus opinion, wherein the examiner concluded that it was less likely than not that the Veteran's condition was incurred in or caused by service. In doing so, the examiner acknowledged that solar exposure is the major risk factor for the development of melanoma. Although the Veteran recalled sun exposure which was "significantly 'more than his norm' for any other 3 year period of his life," his years in service would still not amount to anywhere near 50 percent of his total lifetime solar exposure. This opinion remained intact even when the examiner addressed the Veteran's childhood sun exposure and outdoor occupation following military separation, such that the vast majority of his lifetime solar exposure was not accrued during service. Finally, even if the examiner excluded the more recent years of solar exposure (as there is some medical evidence that it is the "early in life solar exposure" which is the highest risk period of the later development of skin cancer), the Veteran was still left with the fact that only three of his first 25 years were in the military. In this respect, the Veteran's oncologist who wrote an "informal attribution" of the Veteran's melanoma to in-service sun exposure did not seem to account for the lifetime of solar exposure history, the areas in which the Veteran grew up, and was seemingly advocating for the Veteran without providing a supporting rationale. Thus, the Veteran's history of in-service solar exposure was not long enough in duration to outweigh his other lifetime solar exposures, such that a nexus was less likely than not. Also weighing against the claim is an August 2019 VA addendum opinion which concurs with the above rationale. Additionally, the examiner noted that the study discussed in an article submitted by the Veteran in September 2018 was reviewed, and "does not prove causality between service and the development of melanoma." Additionally, the relevance of this report to the Veteran's claim is unknown, and it does not provide sufficient detail to address the issues of pre- and post-service sun exposure which are central to the August 2018 opinion. The examiner also addressed October 2018, March 2019, June 2019, and August 2019 VA treatment records which offer positive nexus opinions but where "the rationale appears to be based solely upon the Veteran's statements about [sun] exposure." In doing so, the examiner also challenged the Veteran's credibility as a historian, in part by citing to previous VA records regarding his prior drug and alcohol use. In contrast, a September 2018 VA treatment record authored by a member of the Veteran's oncology team indicates that they discussed his history of sun exposure, including during childhood and service. In terms of service-related exposure, the Veteran estimated approximately "65% of his time [was] leisure time on the ship. During this time, he was very frequently shirtless, hatless, and in a bathing suit with no barrier protection." Following service, the Veteran performed tasks indoors and did not have frequent sun exposure. Accordingly, his sun exposure during service "was significant, and could very well have led to the predisposition of having melanoma." Similarly, a member of the Veteran's March 2019 oncology team opined that "it is very likely, or greater than 50% chance that his sun exposure during his time in the [N]avy contributed to him developing melanoma." By way of rationale, the physician replicated the history provided in September 2018. A separate March 2019 VA treatment record indicates that it is more likely than not, "in fact very likely" that the Veteran's extended sun exposure during service contributed to his melanoma. A supporting rationale was not provided at that time. In June 2019, the Veteran's oncologist indicated that, upon review of his medical history and service time, "it is in my opinion that it is very likely, at or greater than 50% chance that [the Veteran's] sun exposure during his time in the Navy contributed to him developing Melanoma." This opinion was offered with consideration as to the Veteran's 3.5 years in the Navy, where he spent 65 percent of his time as leisure on the ship. During this time, he was frequently shirtless, hatless, and in a bathing suit with no barrier protection. Before and after his time in the Navy, he was either working predominantly indoors or was fully covered with hats and barrier clothing. Additionally, the Veteran did not recall ever being sunburned prior to his time in service. Finally, in July 2019, a separate oncologist noted that the Veteran had been under the care of the VA clinic for approximately two years. Upon review of the Veteran's records, the physician opined that the probability that his military service caused/incurred his melanoma was very likely 50 percent or greater. In doing so, the examiner again cited to the September 2018 rationale and further noted that it has been shown that military personnel have a higher rate of melanoma. Moreover, "age-specific rates of melanoma incidence among Caucasians in the U.S. military is significantly higher among those aged 45 years or older based on population research . . ." Additionally, it has been shown that patients who served in the Navy have a higher rate of melanoma compared to other military branches. Thus, given the known incidence of melanoma with sun exposure and military service, and considering the Veteran's military service, age at diagnosis, and lack of significant sun exposure following separation, the examiner concluded that there was a 50+ percent chance that the Veteran's service caused his melanoma. In assessing the above, the Board finds that the preponderance of the evidence weighs in favor of the finding of a nexus in this case. In so finding, the Board acknowledges that each of the above examiners offered definitive nexus opinions which were commonly supported by detailed rationales which directly addressed the Veteran's history of sun exposure and the nature of his melanoma. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this limited respect, the opinions are of equal weight. However, the positive opinions were offered by the Veteran's own oncologists, with the specialized expertise to offer competent opinions as to the cause of his melanoma, as supported by their extended evaluation and treatment of his condition. Additionally, as noted by the Veteran's representative during the July 2021 hearing (and confirmed by the Board at this time), the August 2018 and August 2019 opinions were offered by an internist and a cardiothoracic specialist, respectively, who certainly possess expert medical knowledge but not necessarily as relevant to the field of oncology. Moreover, the positive examiners offered more detailed assessments of the Veteran's known sun exposure, acknowledging his childhood history of such but also noting the various protective measures taken during that time. In contrast, the August 2018 examiner incorrectly cites to the duration of the Veteran's childhood in California (as it correlates to related sun exposure), such that the opinion is at least partly predicated on an inaccurate factual basis. Additionally, the August 2019 examiner clearly references the Veteran's prior use of drugs and alcohol to challenge his credibility as a historian, without any evidence of current use which might influence his testimony or any corroborating evidence thereof. Upon consideration of the above, greater probative value is afforded to the positive opinions in concluding that a nexus is present with respect to this appeal. Accordingly, the preponderance of the evidence is in favor of the claim, and the appeal is hereby granted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.