Citation Nr: 21008466 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-39 982A DATE: February 17, 2021 ORDER The claim for service connection for metastatic melanoma is denied. FINDING OF FACT The Veteran’s metastatic melanoma was first demonstrated years after service and the record contains no indication that it was etiologically related to an in-service injury or disease, including his presumed exposure to herbicide agents. CONCLUSION OF LAW Metastatic melanoma was not incurred in or aggravated by active service, nor may its incurrence or aggravation be presumed. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1958 to September 1961 and from July 1962 to July 1985. He died in August 2017. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in June 2020. A transcript of the hearing is included in the claims file. The appellant in this case is the Veteran’s surviving spouse who has been substituted for the Veteran in accordance with the Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating a new 38 U.S.C. § 5121A allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008); 79 Fed. Reg. 52977 (September 5, 2014) (codified at 38 C.F.R. § 3.1010)). Under this statute, an eligible person may process any pending claims to completion following the death of a veteran. Such request must be filed not later than one year after the date of the Veteran’s death and, as provided for in the provision, a person eligible for this substitution will include “a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title....” Id; 38 U.S.C. § 5121A. The appellant filed a formal request for substitution in August 2017 within a month of the Veteran’s death in August 2017, and the agency of original jurisdiction (AOJ) granted the request for substitution in December 2017. Thus, the claim on appeal is properly before the Board with the appellant substituting for the deceased Veteran. 1. Entitlement to service connection for metastatic melanoma, to include as due to exposure to herbicide agents. The appellant contends that service connection is warranted for the Veteran’s metastatic melanoma as the condition was incurred due to herbicide agent exposure in the Republic of Vietnam. The Veteran died in August 2017 due to metastatic melanoma, chronic obstructive pulmonary disease (COPD), and coronary artery disease (CAD), and the appellant is his surviving spouse. She has substituted for the Veteran in this appeal. Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163,1166-67 (Fed. Cir. 2004). The evidence clearly establishes the current disability of metastatic melanoma. The Veteran was first seen at the VA Medical Center (VAMC) with complaints of a pigmented right neck lesion in May 2014. At that time, he reported the lesion appeared approximately two years prior and had no accompanying symptoms. The examining dermatologist found that the neck lesion was “concerning for melanoma,” and an excisional biopsy was performed on May 27, 2014 confirming the diagnosis. In July 2014, an excision of the neck lesion was performed at the VAMC along with a limited lymph node biopsy. There was no evidence of recurrence of the cancer following surgery until January 2017, when the Veteran was diagnosed with metastatic melanoma affecting the adrenal glands and the liver. Thus, a current disability and the first element of service connection is present. An in-service injury is also established. The Veteran’s service records clearly show that he served in the Republic of Vietnam from 1967 to 1968 and his exposure to certain herbicide agents is established via the presumption contained in 38 C.F.R. § 3.307(a)(6)(iii). An in-service injury is therefore demonstrated. The question in this case is whether a causal relationship exists between the Veteran’s cancer and his active duty service. The Board finds that the weight of the competent evidence is against an award of service connection and the claim must be denied. Service connection is available for certain diseases as presumptively associated with exposure to herbicide agents under 38 C.F.R. §§ 3.307 and 3.309. Several types of cancer are included on this presumptive list, including prostate cancer and respiratory cancers. However, metastatic melanoma is not one of the types of cancer presumptively associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e). In fact, in September 2011, the National Academy of Science (NAS) issued a notice (Veterans and Agent Orange: Update 2010) determining that service connection based on exposure to herbicides in the Republic of Vietnam was not warranted for, among other things, the following: melanoma and cancers of the oral cavity. See 77 Fed. Reg. 47924 (Aug. 10, 2012). Thus, the disability on appeal is not a disease recognized by VA as associated with herbicide exposure and service connection on a presumptive basis is not possible. Service connection is also possible for certain chronic diseases presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Although the Veteran’s cancer is one of the enumerated chronic diseases set forth in this section, there is no indication that the Veteran’s metastatic melanoma was present to a compensable degree in the year following his separation from active duty in July 1985. Rather, the earliest evidence of the disability, either lay or clinical, dates from 2014 when the Veteran sought treatment at the VAMC for a suspicious lesion on his neck. At that time, he reported a two-year history of the lesion and no accompanying symptoms. This lay evidence dates the onset of melanoma to approximately 2012, more than 25 years after discharge. Service connection on a presumptive basis for melanoma as a chronic disease is therefore not warranted. Although service connection is not appropriate for the Veteran’s disability on any presumptive bases, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of actual direct causation, i.e. a link between the Veteran’s current disability and in-service exposure to herbicides. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Unfortunately, the record does not provide a basis upon which to grant the claim on this basis. Service records are completely negative for any evidence indicating the presence of melanoma or other skin abnormalities. The Veteran was first diagnosed with melanoma in May 2014, almost 30 years after discharge, with a recurrence of the cancer in 2017. The absence of any clinical evidence of melanoma in service or for decades after service weighs the evidence against a finding that the Veteran’s disability was present in service, particularly as neither the Veteran nor the appellant have alleged the onset of the condition during service or for many years thereafter. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is also no indication that the post-service melanoma is otherwise causally related to an established in-service disease or injury. None of the Veteran’s treating physicians attributed his metastatic melanoma to herbicide agent exposure and there is no medical evidence addressing the etiology of the Veteran’s cancer aside from a finding in June 2014 that the Veteran had “extensive sun damage/actinic changes” to his skin, particularly his face. Despite this finding, the Veteran had no other suspicious skin lesions and no healthcare provider has provided a statement commenting on the etiology of the Veteran’s melanoma. There is simply no indication of record of a link between in-service sun exposure (versus post service sun exposure) or in-service herbicide agent exposure, and the post-service melanoma. Service connection is also possible for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, the Veteran’s cancer is a chronic disease listed in 38 C.F.R. § 3.309(a). However, neither the Veteran nor the appellant reported a history of continuous symptoms since service or provided any statements specifically describing the onset of the condition. With respect to the appellant’s general contentions linking the Veteran’s melanoma to herbicide agent exposure during service, she is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the appellant is competent to report observable symptoms but finds that her opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). In sum, the post-service medical evidence of record shows that earliest evidence of the Veteran’s metastatic melanoma was decades after discharge from active duty service. In addition, there is no indication that the Veteran’s post-service melanoma is related to an in-service disease or injury, to include presumed herbicide agent exposure. The Board is sympathetic to the appellant’s contentions and recognizes the honorable service of her husband, but must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C. § 5107(b). K. Conner Veterans Law Judge Board of Veterans’ Appeals M. Riley, Attorney for the Board Department of Veterans Affairs 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.