Citation Nr: 21022533 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-42 590 DATE: April 16, 2021 ORDER Entitlement to service connection for a lumbosacral spine arthritis (claimed as back pain) is granted. Entitlement to service connection for melanoma is denied. FINDINGS OF FACT 1. The Veteran has experienced chronic lumbar spine pain related to lumbar arthritis since his separation from service. 2. The preponderance of the evidence is against finding that melanoma began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbosacral spine arthritis are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for melanoma are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from September 1962 to September 1966. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). 1. Entitlement to service connection for a lumbosacral spine strain The Veteran claims entitlement to service connection for a lumbosacral spine strain. The Veteran testified at the October 2018 Board hearing that he injured his back during service, which he believes is the cause of his current back impairment. With regard to a present disability, the August 2020 VA examiner found the Veteran had diagnoses of lumbar intervertebral disc syndrome (IVDS) and lumbar arthritis. Thus, the first element of service connection has been met. With regard to an in-service disease or injury, the Veteran’s service treatment records (STRs) are silent for any treatment for a back injury or impairment. On his August 1962 enlistment examination and his September 1966 separation examination, no back conditions were noted. However, the Veteran competently and credibly testified at the October 2018 Board hearing that he injured his back during service. The Veteran testified on July 5, 1966 a steel cable was let loose and dragged the Veteran causing significant trauma to his legs and back. The Veteran stated he was seen in the sick bay but was only told to take the rest of the day off. Accordingly, the Board finds that the Veteran has credibly attested to an in-service injury as related to his back. Thus, the second element of service connection has also been met. Turning to nexus, the Board finds that the evidence of record supports that the Veteran’s lumbosacral spine strain and resulting arthritis is chronic in nature and has been continuously symptomatic since service. The Veteran testified that he experienced progressively worsening back pain from his time in active duty service, which resulted in him seeking care and surgery on his spine in 1977. The Veteran noted that following service he worked as an insurance adjuster, which was a desk job. He stated he experienced no additional traumatic events to his spine between leaving service in 1966 and his first surgery in 1977. Upon VA examination in August 2020, the examiner opined the Veteran’s current back impairment was less likely than not related to service. However, in the October 2020 Board Remand, the Board found the August 2020 VA examiner’s opinion regarding nexus did not provide sufficient rationale. In October 2020, the VA examiner provided an addendum opinion. The examiner noted the Veteran’s credible Board hearing testimony which recounted an injury to his spine on July 5, 1966. The examiner also noted the Veteran developed a back condition after separation which required back surgery for a disc problem in 1977. The examiner opined that to state that the Veteran’s back condition developed due to the incident on the ship, while the separation examination noted no back issues, and the first medical records indicating a back condition were 10 years post-service, would not be reasonable based on the available medical evidence of record. Therefore, the examiner found that it was less likely than not that the Veteran’s current back impairment was related to his in-service back injury. The Board acknowledges that the October 2020 VA examiner opined that the claimed lumbar spine impairment was less likely than not related to the claimed in service injury. However, the Board finds that this medical opinion did not give due consideration to the Veteran’s competent account of the onset of symptoms in service and their continuity thereafter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds the Veteran’s testimony concerning the onset of his back disability and continuing back symptoms to be credible and probative. The Veteran has been diagnosed with lumbar arthritis, which is considered a chronic condition for which a nexus may be demonstrated by a showing of continuity of symptomatology. Although the Veteran did not seek treatment for his back condition from 1966 to 1977, the Veteran provided competent and credible testimony that he experienced ongoing symptomatology during this period. Further, the Board notes that a lack of medical documentation is not fatal to a claim for service connection. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s lumbar spine disability is related to his active service, and service connection for a lumbar spine strain is warranted. 2. Entitlement to service connection for melanoma The Veteran contends that his melanoma is related to sun exposure during active service. Service connection for melanoma may be awarded on a direct basis or on a presumptive basis for chronic disease under 38 C.F.R. § 3.309(a) or on the basis of continuation of symptomatology under 38 C.F.R. § 3.303(b). Post-service treatment records show the Veteran was first diagnosed with melanoma in 1997. Private treatment records show ongoing treatment and removal of pre-cancerous and cancerous skin cells. See Private treatment dated December 1997 to December 2019. Thus, the first element of service connection is met. Service treatment records (STRs) are silent for complaints or treatment of melanoma. On his August 1962 enlistment examination and his September 1966 separation examination, no skin conditions were noted. In April 1965, the Veteran was treated for seborrheic dermatitis. The Veteran testified that during service he would have exposure to sun while coming and going from the island of the bridge and would remain outside rather than being below deck. Turning to nexus, the Veteran was seen for a VA examination in December 2015. The examiner noted the Veteran’s STRs showing treatment for seborrheic dermatitis in April 1965, but found that seborrheic dermatitis is not associated with the development of melanoma or any skin cancers. The examiner concluded it would be difficult to find an association between the current melanoma and the documented in-service seborrheic dermatitis. The Veteran was seen for an additional VA examination in August 2020, the examiner noted the Veteran’s lay opinion that his sun exposure during service was the leading cause of his skin cancer. The examiner noted that sun exposure causes damage to skin cells, which leads to cancerous growth. The examiner further noted the Veteran was first diagnosed with skin cancer in the 1990s. However, the examiner found that it would be difficult to state that the Veteran’s sun exposure during the four years of service was the cause of skin cancer when he had approximately 50 years of sun exposure at the time of his first diagnosis. Therefore, the examiner concluded the Veteran’s melanoma was less likely than not related to service. Following the October 2020 Board remand, the VA Veteran’s claim for entitlement to service connection for melanoma was afforded an additional opinion from a VA examiner. In October 2020, the VA examiner noted that following a review of the Veteran’s file, that to find the Veteran’s sun exposure during service was the case of his current melanoma would not be medically reasonable. The examiner stated that to find the Veteran’s in-service sun exposure was the source of his melanoma would be to presume the Veteran had no pre-service or post-service sun exposure and therefore only his service-related sun exposure was the etiology of his skin cancers. Therefore, the examiner concluded it was less likely than not that the Veteran’s diagnosis of skin cancer was incurred in or caused by service. The Board finds that the evidence of record does not support a finding of service connection for melanoma. The Board concedes that the Veteran currently suffers from melanoma. The Board concludes, however, that the greater weight of the evidence is against the claim. Service treatment records are silent as to the claimed disorder. Further, the Veteran’s melanoma was first diagnosed in 1997, or 31 years after his separation from service. The Veteran does not assert, nor does the evidence show that his melanoma began prior to that point, or within one year of his separation from service. Therefore, entitlement to service connection for melanoma based on a continuation of symptomatology under 38 C.F.R. § 3.303(b) or on a presumptive basis for chronic disease under 38 C.F.R. § 3.309(a) is not warranted. Furthermore, the Board finds persuasive the absence of medical evidence to support a finding of a nexus between the Veteran’s service and any current melanoma. Absent a medical opinion in the record of a relationship to military service, the Veteran’s claim for service connection for melanoma must be denied. There is simply no medical evidence in the record supporting a finding of an etiological relationship between the Veteran’s service and his current claimed disability. The Veteran is competent to describe any discernible symptoms of melanoma without any specialized knowledge or training. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). However, his own opinions regarding the etiology of his melanoma (relating such to his in-service sun exposure) are not competent evidence. He is a layperson, and does not cite to supporting medical opinion or clinical or medical treatise evidence which pertains to his own specific disability picture. Furthermore, the question of the etiology of melanoma is a medical question beyond the scope of lay observation. See Jandreau, 492 F. 3d at 1372. (Continued on the next page)   Based on the foregoing, the Board finds that there is no nexus between his claimed melanoma and military service. The preponderance of the evidence is against the claim for service connection for melanoma. The benefit of the doubt doctrine is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.