Citation Nr: 21023026 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-27 723 DATE: April 19, 2021 ORDER Entitlement to service connection for melanoma, to include as due to presumed exposure to herbicide agents and/or sun exposure, is denied. FINDING OF FACT Melanoma did not have its onset during active service, did not manifest to a compensable degree within one year of service discharge, and is not otherwise related to active service, to include presumed exposure to herbicide agents and/or sun exposure. CONCLUSION OF LAW The criteria for service connection for melanoma, to include as due to presumed exposure to herbicide agents and/or sun exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from October 1965 to April 1966, and from June 1966 to June 1968. He also had subsequent service in the Army National Guard. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2021 virtual hearing and a transcript of the hearing has been associated with the claims file. Following the hearing, the record was held open for 60 days, during which time the Veteran submitted additional private treatment records, and these records have been considered herein. Entitlement to service connection for melanoma, to include as due to presumed exposure to herbicide agents and/or sun exposure. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a disability, a Veteran 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. For certain chronic diseases, including malignant tumors, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. Service connection for certain specified diseases may also be granted on a presumptive basis due to exposure to herbicide agents, provided the disease manifests to a compensable degree within a specified period in 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. Given the Veteran’s confirmed active service in Vietnam during the relevant time period, he is presumed to have been exposed to herbicide agents during active service. The Veteran asserts that service connection is warranted for melanoma, to include as due to presumed exposure to herbicide agents and/or sun exposure during active service. Within his May 2017 VA Form 9, Appeal to the Board, the Veteran reported that he had the claimed condition since his return from Vietnam. At the January 2021 Board hearing, the Veteran testified that he served in Vietnam in areas where the Agent Orange herbicide agent was sprayed “all the time.” Additionally, he reported that he received in-service treatment from a corpsman for some bad sunburns that caused blistering, and that after his return from active duty in Vietnam, he would get sunburns that were significantly worse than during his time in Vietnam. He stated that he first noticed his melanoma approximately five years earlier, after his granddaughter noticed moles on his back and shoulder. He reported that the surgeon who removed the melanoma thought that his condition could be from his exposure to Agent Orange in Vietnam. Following a review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for melanoma, to include as due to presumed exposure to herbicide agents and/or sun exposure. The reasons for this decision follow. First, the Board notes that private treatment records from June 2016 document that the Veteran was seen for evaluation of skin lesions located on the right upper arm, right upper back, left axilla, and scalp. The following month, in July 2016, a malignant melanoma was removed from the right anterior shoulder and in October 2016, a malignant melanoma was removed from the left posterior shoulder. Similarly, VA treatment records from August 2016 VA document the recent excision of a malignant melanoma from the shoulder. Thus, there is evidence of a current disability. Regarding in-service incurrence or aggravation of a disease or injury, the Board is mindful that service treatment records do not document complaints, diagnosis, or treatment of melanoma during active service. Notably, Reports of Medical Examination conducted in September 1965 and March 1966 document normal clinical evaluations of the Veteran’s skin, without any notation of a skin defect or diagnosis. As such, the Board finds that the preponderance of evidence weighs against a finding that the Veteran’s melanoma first had its onset during active service, and the second element of his service-connection claim is not met. Additionally, there is no competent evidence that melanoma first manifested to a compensable degree within one year of the Veteran’s June 1968 separation from active service. Significantly, a May 1969 Report of Medical Examination conducted nearly one year after the Veteran’s separation from his second period of active service again documents a normal clinical evaluation of the Veteran’s skin, without a notation of a skin defect or diagnosis. As such, presumptive service connection for melanoma as a chronic disease is not warranted. Finally, the Board further concludes that the preponderance of the evidence is also against a nexus between the current melanoma and active service. As noted above, following his second period of active service, the Veteran had additional service in the Army National Guard. Significantly, additional Reports of Medical Examination conducted in January 1985, February 1988, and February 1991 each document normal clinical evaluations of the Veteran’s skin, without a notation of a skin defect or diagnosis. Moreover, within concurrent Reports of Medical History in January 1985, February 1988, and February 1991, the Veteran repeatedly denied a history of skin diseases. Post-service VA treatment records document ongoing complaints of various skin conditions. For example, in August 1984, the Veteran was assessed with an intradermal nevus. A July 1993 VA General Medical Examination documents no significant skin lesions, although the Veteran reported a history of recurrent moles with a pathological diagnosis of intradermal nevus. In March 2001, it was noted that the Veteran had multiple lipoma excisions with multiple recurrences. In June 2001, he reported that he experienced “jungle rot” after previous exposure to herbicides and stated that this skin disorder was difficult to get rid of after Vietnam. He reported using creams without success until he was told to use “straight Lysol,” which worked on his condition. In January 2010, the Veteran was documented to have lipomas on his left chest wall, and in February 2010, he underwent left upper arm lipoma excision. In June 2011, he underwent excision of a lipoma on the right anterior chest wall. Finally, in August 2016, VA treatment records document a “recent excision of malignant melanoma from [the Veteran’s] shoulder.” Given the above, the Board finds that a review of post-service VA treatment records do not weigh in favor of a finding that his current melanoma had its onset prior to 2016, or that it is otherwise related to his active service. Notably, prior to 2016, the Veteran was regularly reporting and seeking medical treatment for other skin conditions, and the Board finds it is reasonable to assume that if he experienced melanoma prior to 2016, he would have reported it or it would have been discovered in the context of his treatment for various other skin disorder complaints. Post-service private dermatology treatment records document a June 2016 evaluation of skin lesions located on the Veteran’s right upper arm, right upper back, left axilla, and scalp. The Veteran reported that the lesions had been present for “many years.” He denied any related treatment in the past, as well as any history of skin cancer. In July 2016, the Veteran was assessed with malignant melanoma in-situ located on his right anterior shoulder following a diagnostic biopsy. Later that same month, the Veteran underwent excision of a residual junctional melanocytic hyperplasia/proliferation from his right shoulder. Similarly, in October 2016, the Veteran underwent operative removal of a malignant melanoma in-situ on the left posterior shoulder. As such, the Board finds that private treatment records likewise do not weigh in favor of a finding that the Veteran’s current melanoma first had onset prior to assessment in 2016. Although the Veteran reported in June 2016 that his skin lesions had been present for many years, the Board finds, as above, that if the Veteran had melanoma prior to 2016, it is reasonable to assume that he would have reported it, or it would have been discovered, prior to 2016 during the course of his medical treatment for various other skin complaints. At the present time, there is no competent evidence relating the Veteran’s current melanoma to his active service, to include as due to presumed exposure to herbicide agents and/or sun exposure. While the Veteran has attempted to establish a nexus through his own lay assertions that his melanoma is caused by his presumed exposure to herbicide agents and/or sun exposure during active service, the Board finds that the Veteran has not demonstrated competency to offer nexus opinions as to the etiology of his current melanoma. Although a skin disorder may be amenable to lay observation, the diagnosis of melanoma requires diagnostic testing, including biopsy by a medical professional. The question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. Although the Veteran testified during the January 2021 that he received in-service treatment from a corpsman for some bad sunburns that caused blistering, the Board notes that a review of service treatment records does not document such complaints, and in fact, as discussed above, the Veteran denied a history of skin conditions within Reports of Medical History following his active service. Additionally, the Veteran’s report that he had the claimed condition since his return from Vietnam is inconsistent with his subsequent January 2021 hearing testimony that he first noticed his melanoma approximately five years earlier, which the Board notes is consistent with post-service treatment records documenting an initial assessment of melanoma in 2016. The Board also acknowledges that the Veteran testified that the surgeon who removed the melanoma told him that he thought the Veteran’s condition could be from exposure to Agent Orange in Vietnam, the Board finds that the objective evidence of record does not document any such medical opinion, and in any event, such opinion would be purely speculative in nature in the context of the Veteran’s claim. Finally, the Board is mindful of the Veteran’s assertion that his melanoma is a result of sun exposure during active service. However, the Veteran testified that he was exposed to the sun, and experienced sunburns, from his youth, and in the years following active service, when he had a pool in his backyard and “used to run around in shorts . . . and [] get burnt.” Although he asserted that following active service, his sunburns every summer thereafter got worse and worse, the Board finds that such reports do not support a finding that sun exposure during the Veteran’s active service resulted in his melanoma which was first assessed in 2016, nearly 40 years after his discharge from active service. The Board is mindful that the Veteran has not been afforded a VA examination or medical opinion for his current melanoma. However, the Board finds that the facts of this case do not establish entitlement to a VA examination and/or medical opinion. VA must provide a medical examination and/or medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the preponderance of the evidence is against a finding that melanoma occurred in service, that melanoma manifested during an applicable presumptive period, and an indication that melanoma may be associated with the Veteran’s service. For a VA examination and/or medical opinion to be warranted, all the McLendon criteria have to be met, and at least one criteria is not met. Therefore, entitlement to a VA examination and/or medical opinion is not warranted. In conclusion, for all the reasons described above, the Board finds that the preponderance of evidence weighs against the Veteran’s claim for service connection for melanoma, to include as due to presumed exposure to herbicide agents and/or sun exposure. As such, there is no reasonable doubt to be resolved, and the claim for service connection is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.