Citation Nr: 21009600 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-36 817 DATE: February 22, 2021 ORDER Service connection for malignant melanoma is denied. FINDINGS OF FACT 1. The Veteran served on active duty from October 1965 to October 1969, to include service in Vietnam. 2. Malignant melanoma (skin cancer) was not shown in service or within one year of service, symptoms of malignant melanoma were not continuous since service, and malignant melanoma is not causally or etiologically related to service, to include to herbicides or sun exposure. CONCLUSION OF LAW Malignant melanoma was not incurred in service, nor may it be presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1112, 1116, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In November 2020, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 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). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran served in the Republic of Vietnam between January 1962 and May 1975. 38 C.F.R. § 3.307(a)(6). Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran asserts that malignant melanoma is related to in-service herbicide exposure or sun exposure during service in Vietnam. As to the existence of a present disability, the record reflects a diagnosis of malignant melanoma. Therefore, the first element of direct service connection is met. As to an in-service incurrence, the Veteran served in Vietnam and he is competent to report sun exposure/having experienced sunburns in service. As such, herbicide agent exposure and sun exposure are conceded. Thus, the second element of direct service connection – an in service incurrence – is also met. As to a causal relationship (medical nexus), a review of the service treatment records (STRs) does not reflect any complaints or findings with respect to malignant melanoma or a skin disorder or any kind, including sunburns. Importantly, the service separation examination noted a normal clinical evaluation of the skin and the Veteran denied any skin diseases in the separation Report of Medical History. As such, the STRs do not support a medical link between malignant melanoma to in-service sun exposure or any other incident during service. Further, at the hearing, the Veteran requested that the record be held open for 60 days in order to submit a private medical opinion in support of his contentions (that malignant melanoma was related to in-service sun exposure). However, he did not submit any additional evidence, and there is no medical evidence in support of this theory of entitlement. As such, service connection is not warranted on a direct basis. As to presumptive service connection, as noted above, no chronic disease or injury related to malignant melanoma was shown in service as the STRs were absent of any skin complaints. Also significant is the lack of any skin complaints or findings at the time of service separation. In addition, the Veteran does not contend that malignant melanoma was present in service. Therefore, the medical evidence does not support presumptive service connection on a “chronic disease or injury shown in service” basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. Specifically, the Veteran was discharged from service in October 1969 with a notation of normal skin evaluation and he was not diagnosed with malignant melanoma until 2015, more than 40 years after service. At the time of initial diagnosis, there was no evidence suggesting that malignant melanoma had been present for 40 plus years. In this regard, skin biopsies from 2005-2006 were benign, according to the Veteran’s hearing testimony. Therefore, the medical evidence does not support service connection on a “continuity of symptomatology” basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. The Veteran separated from service in 1969 but was not diagnosed until 2015. As stated above, he testified that he had other skin biopsies in 2005-2006 that were benign. As such, malignant melanoma was not present any earlier than 2005-2006. This evidence does not support presumptive service connection on a “manifest within one-year from separation” basis. Therefore, presumptive service connection on any basis is not supported by the medical evidence. As to presumptive service connection based on herbicide exposure, malignant melanoma is not a disorder listed under 38 C.F.R. § 3.309(e); therefore, presumptive service connection based on exposure to herbicide agents is not warranted. As to service connection on a direct causation basis to exposure to herbicides, no medical evidence links malignant melanoma to herbicide exposure. Notably, at the videoconference hearing before the undersigned, the Veteran essentially abandoned this theory of entitlement and instead argued that malignant melanoma was due to sun exposure. As such, and without any evidence of a causal relationship between malignant melanoma and herbicide exposure, service connection on a direct causation basis is not warranted. The Board has considered the Veteran’s lay statements that malignant melanoma was caused by herbicide agent or sun exposure during service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records and clinical evidence obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. The Board notes that in this case, because there is a current disability (malignant melanoma) and an in-service injury, disease or event (herbicide agent/sun exposure), obtaining a medical opinion may be warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, there is still a threshold element of at least an indication of a link between the two. This low threshold is not met in this case because there is only the unsupported lay contention of a medical nexus. General conclusory statements do not rise to an indication of a link. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). The Veteran has not shown that there is an indication of a link. Therefore, remand for a VA examination is not required. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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.