Citation Nr: 21020824 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-64 510 DATE: April 8, 2021 ORDER Entitlement to service connection for melanoma is denied. Entitlement to service connection for a benign prostate hypertrophy (BPH) is denied. Entitlement to service connection for erectile dysfunction is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s melanoma, BPH, and erectile dysfunction are etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for melanoma have not been met. 38 U.S.C. §§ 1110, 1116(f), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for BPH have not been met. 38 U.S.C. §§ 1110, 1116(f), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1116(f), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to September 1971. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. Now the matter is before the Board. The Veteran is seeking service connections for melanoma, BPH, and erectile dysfunction. He contends that melanoma and BPH is due to his exposure to Agent Orange during his service in the Republic of Vietnam, and his erectile dysfunction is secondary to BPH. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2020). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Alternatively, a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2020). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2020). A presumption of service connection based on the herbicide exposure in the Republic of Vietnam during the Vietnam Era is not warranted for various other conditions for which the VA Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32395-32407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 21258-21260 (May 7, 2009). However, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for a disability due to herbicides exposure. See Combee v. Brown, 34 F.3d 1039 (1994). Also, the regulation provides that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2019). (Continued on the next page) In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. Initially, the Board notes that the Veteran’s exposure to herbicides was conceded by the RO. See May 2020 VA Memorandum. The evidence of record shows the Veteran’s diagnoses of melanoma, BPH, and erectile dysfunction. However, those claimed conditions are not listed under 38 C.F.R. § 3.309(e) for presumption of service connection due to herbicides exposure. The Board observes that prostate cancer is listed under 38 C.F.R. § 3.309(e), but the evidence of record does not show that the Veteran has prostate cancer. The Board also considered whether the Veteran is entitled to direct service connections for the claimed conditions. However, the evidence of record does not show any complaints, treatments, or diagnoses related to his skin or prostate conditions in service. Also, the record does not contain any evidence providing a causal link between the Veteran’s herbicides exposure and his claimed conditions. The Board notes that a VA medical opinion regarding the nexus between the Veteran’s claimed conditions and his herbicides exposure in service has not been obtained. However, the Board finds that obtaining the VA medical opinion is not necessary to make a decision on this claim since no competent evidence of any in-service injury or incurrence of the claimed conditions, or any causal relationships between the claimed conditions and herbicides exposure, is on record to trigger the need for an additional medical opinion. See 38 U.S.C. § 5103A (2012). To the extent that the Veteran believes his conditions to be related to herbicide exposure, as a lay person, he is not competent to offer an opinion on a medical question. Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran’s melanoma, BPH, and erectile dysfunction are etiologically related to his active duty service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Veteran’s entitlement to service connections for melanoma, BPH, and erectile dysfunction is not warranted. 38 U.S.C. §§ 1110, 1116(f), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, Associate 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.