Citation Nr: 21024095 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-25 939 DATE: April 22, 2021 REMANDED Entitlement to service connection for malignant melanoma is remanded. Entitlement to service connection for a disfiguring scar, right lower back, to include as due to malignant melanoma and secondary to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1977 to June 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran was afforded a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. In April 2019, the Board remanded the issues above in order to obtain updated VA treatment records and VA examinations. 1. Entitlement to service connection for malignant melanoma is remanded. The Veteran contends that his malignant melanoma is a result of his active military service. Specifically, the Veteran testified that his condition developed after many years of direct sun exposure in service, while performing military duties in various deployment locations, to include Korea and Texas. The Veteran expressed that as an Infantryman, he was constantly in sunlight. The Veteran expressed that he developed a sunspot in service while digging foxholes and equipment. The Veteran testified that he did not wear protective clothing while exposed to the sun. The Veteran stated that he was never given sunscreen in service and that he could not go on sick call for a sun burn because he would have been threatened with an Article 15. In addition, the Veteran testified that no one in his family has melanoma. Thus, in its April 2019 Board remand the Board requested for a VA examination with a VA opinion that specifically addresses the Veteran’s contentions that his malignant melanoma developed as a result of many years of direct sun exposure in service while not wearing protective clothing and sunscreen. The Veteran was afforded a VA examination in December 2019. The examiner indicated that the Veteran has a current skin condition of melanoma, right lower back, s/p surgical excision. The examiner reported that on active duty, the Veteran was in the infantry and the Veteran indicated that he had a lot of sun exposure. The examiner noted that the Veteran’s medical records show that the Veteran had a skin biopsy of the right back in 2013 that was positive for melanoma. The examiner noted that no recurrence of melanoma has been found since the 2013 wide excision. The examiner expressed that according to Up-to-Date medical resource website, melanoma is associated with sunburns, however, no active duty medical records document any sunburn treatments. The examiner noted that the Veteran reported in his VA testimony that the military threatened with an Article 15 if the Veteran was seeking treatment for severe sunburns. The examiner also noted that there are multiple risk factors for melanoma, such as ethnic background, skin type, and genetic background. Thus, the examiner opined that while sun exposure is a risk for melanoma, there are multiple risk factors for melanoma, and it is not possible to specifically state what the major cause of this Veteran’s melanoma, which was diagnosed 27 years after leaving active duty. Therefore, the examiner concluded that it is less than 50 percent likely that the claim for malignant melanoma was incurred in, or caused by sun exposure during active duty, or not wearing protective clothing or sunscreen on active duty, or had its onset on active duty. After review of the December 2019 VA medical opinion, the Board finds that it is inadequate as the examiner failed to adequately discuss the Veteran’s lay statements and the examiner based his opinion in part on the lack of service treatment records noting a sunburn. Here, the VA examiner specifically noted that melanoma is associated with sunburns. Although the VA examiner acknowledged the Veteran’s contention that his melanoma was associated with sunburns and that the Veteran was threatened with an Article 15 if he sought treatment for severe sunburns, the VA examiner dismissed the Veteran’s statements and provided a negative opinion based on the lack of active duty medical records that document any sunburn treatments. Here, the Board notes that the Veteran explicitly stated that he was threatened with an Article 15 if he sought treatment for his sunburns, however, the VA examiner failed to consider the Veteran’s statements. In addition, the examiner failed to address the Veteran’s contention that he lacked the proper protective clothing and sunscreen in service, and thus was more at risk for sunburns. When VA provides a medical examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007), see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (“The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusions submitted in the medical opinion”).  Thus, the Board finds that a new VA examination is necessary. 2. Entitlement to service connection for a disfiguring scar, right lower back, to include as due to malignant melanoma and secondary to service-connected disabilities is remanded. The Veteran contends that service connection should be granted for the Veteran’s disfiguring scar as secondary to the Veteran’s malignant melanoma. In addition, the Veteran asserts that his scar was aggravated by the Veteran’s service-connected granulomatous disease. The Veteran testified that his condition affects his skin and the Veteran’s ability to heal quickly from bruises and cuts. As a result, the Veteran’s scar took forever to heal up and just ripped open. Thus, in its April 2019 Board remand, the Board requested for a VA examination with a VA opinion that address whether the Veteran’s disfiguring scar was proximately caused or aggravated by his malignant melanoma, and whether the Veteran’s disfiguring scar was aggravated by any service-connected disabilities, to include granulomatous disease. The Veteran was afforded a VA examination in December 2019. The Veteran was diagnosed with surgical scar, right lower back. The examiner stated that in 2013, the Veteran had surgical wide excision of malignant melanoma, right lower back and that the Veteran developed a post-operative wound infection which delayed healing. The examiner expressed that this surgical scar is not related to his granuloma disorder, and there is no evidence that this condition affects the Veteran’s healing ability. Thus, the examiner opined that it is less than 50 percent likely that the disfiguring surgical scar right back was aggravated beyond natural progression by any service-connected disorders, including the granuloma. The examiner also stated that the disfiguring scar was the result of a wound infection after melanoma excision, and is not related to the melanoma itself. Thus, the examiner opined that it is less than 50 percent likely that the claim for disfiguring scar, right back is proximately due to, or the result of, or aggravated by, his malignant melanoma or service connected disabilities, and is not related to any impairment of ability to heal. The Board finds the December 2019 VA opinion is inadequate as the VA examiner failed to provide separate rationales for causation and aggravation and provided little to no rationale for the opinion reached. In addition, the Veteran’s service connection claim for a disfiguring scar, right lower back, may be intertwined with the Veteran’s service connection claim for malignant melanoma being remanded above. Thus, a new VA examination is warranted. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for a VA examination, by an examiner who has not previously examined the Veteran, to determine the nature and etiology of the Veteran’s malignant melanoma and disfiguring scar. The entire claims folder, including a copy of this Remand, should be made available to and reviewed by the examiner. The examiner is then specifically instructed to provide the following opinions: (a) Is it as least likely as not (a 50 percent probability or greater) that the Veteran’s malignant melanoma had its onset in service or is otherwise related to service? In rendering this opinion, the examiner MUST specifically address the Veteran’s contentions that his malignant melanoma developed as a result of many years of direct sun exposure in service while not wearing protective clothing and sunscreen. In addition, the Veteran testified that no one in his family has had melanoma. The examiner should comment on the medical literature cited in the March 2021 written brief in support of the Veteran’s contentions. (b) The examiner should address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s disfiguring scar was proximately caused or aggravated by his malignant melanoma, currently on appeal? The examiner should note that this question requires two separate opinions: one for proximate causation and a second for aggravation. (c) The examiner should also address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s disfiguring scar was aggravated by any service-connected disabilities, to include granulomatous disease? In rendering this opinion, the examiner should address the Veteran’s contention that his granulomatous disease affects his skin and the Veteran’s ability to heal quickly from bruises and cuts. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, then a reason for doing so must be provided. (Continued on the next page)   The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. In providing all the above opinions, the examiner is requested to review all pertinent records associated with the claims file. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. 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.