Citation Nr: 21040166 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-01 374 DATE: July 2, 2021 ORDER Entitlement to service connection for right ear melanoma in situ is granted. FINDING OF FACT The evidence is in equipoise as to whether the right ear melanoma in situ is related to the Veteran's in-service sun exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear melanoma in situ have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to June 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This issue was previously before the Board in December 2018 and November 2019, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Entitlement to service connection for right ear melanoma in situ In a March 2017 statement, the Veteran asserted that the right ear melanoma is due to sun exposure while in service. 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, 1131 (2012); 38 C.F.R. § 3.303(a). To establish a right to compensation for a present 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A June 2019 VA examination found a diagnosis of right ear lobe melanoma in situ and noted that it was in remission following a surgical excision in September 2016. Accordingly, the first element of service connection is met. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). June 1973 service treatment records (STRs) indicate a rash due to sun exposure, and that the Veteran had gotten "a good tan." Notably, April 1975 STRs indicate sun poisoning. In a March 2017 statement, the Veteran asserted that a good part of their 21 years of service was outdoors with only either a ballcap or a flight cap for protection, which left their ear lobes unprotected and exposed to sunlight. In the case of flight operations, the Veteran stated that they were without any head covering due to the potential of hats being sucked into jet engine intakes. The Veteran's DD-214 indicates that they held several military occupational specialties (MOS) during service, including security specialist, medical service specialist, bioenvironmental engineering superintendent, and technical training instructor. The Board finds the Veteran's lay statements to be competent as they report to factual matters of which they have first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds the Veteran's statements to be credible as they are consistent with their MOS. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Third, the Board finds that the evidence is in relative equipoise as to whether the Veteran's melanoma is related to active service. The Veteran underwent a June 2019 VA examination where the examiner provided two negative nexus opinions. The first, the examiner noted the STRs noting a rash following sun exposure and sun poisoning but opined that the melanoma is less likely than not related to military service. Per a review of the literature and history, the examiner explained that exposure to sunlight and ultraviolet radiation is the primary cause of the development of skin cancers, to include melanoma. The examiner noted that the Veteran worked extensively in the outdoors without hats or sunscreen while in service, but also did a similar job after service for years without sun protection as well. This examiner also provided an opinion for aggravation of a condition that existed prior to service, repeating the above opinion, adding that the claimed condition clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. However, the examiner failed to provide any supporting rationale for this opinion, especially given that there is no evidence of melanoma or any other skin carcinoma prior to service, including on the May 1972 enlistment report of medical examination. The Veteran submitted several lay statements in July 2019, including from their spouse, and several coworkers who all asserted that the Veteran did not have significant sun exposure following service, and that the bulk of the work the Veteran did was inside, and consisted of writing, and generating reports and factsheets. The Veteran asserted that while they followed a similar career path with an emphasis on environmental compliance, at no time did they state that they worked extensively outside without hats or sunscreen post-service. Following these statements, the RO issued an August 2019 Deferred Rating, asking for an addendum medical opinion to consider the above lay statements; however, they merely added a copy of the identical June 2019 VA medical opinions to the file without addressing these statements. In January 2020, the Veteran submitted a positive private medical opinion. The private examiner explained that the Veteran has past medical history significant for malignant melanoma of the right ear and opined that it is certainly likely that the significant sun exposure while in the military contributed to the development of the melanoma. Per the November 2019, the RO obtained two new VA medical opinions in January 2020 based on a review of the claims file. The first, the examiner provided a positive medical opinion, noting that they reviewed all medical records, including all lay statements, and that in the November 2019 remand, the Board conceded the Veteran's sun exposure in-service. The examiner noted evidence in the claims file that shows post-service sun exposure due to the Veteran's work. The examiner stated that it is not possible to know if the malignant melanoma is caused by the in-service sun exposure, post service sun exposure, or a cumulative effect of sun exposure over many decades. Citing medical literature by the Mayo Clinic, the examiner noted that the exact cause of melanoma is not known, and exposure to ultraviolet radiation from sunlight increases the risk of developing melanoma. Citing an article by cancer.org, the examiner explained that an exact time from sun exposure to the development of melanoma can be years or decades. The examiner noted the diagnosis right ear melanoma in situ from the August 2019 VA examination, and opined that therefore it is at least as likely as not that the Veteran's melanoma is a result of active military service. The same day, the same examiner also provided a negative nexus opinion. The examiner explained that the melanoma was not diagnosed during service and noted the August 2019 VA examination's diagnosis. Therefore, the examiner opined that it is less likely than not that the malignant melanoma of the right ear was incurred in or caused by the melanoma of the right ear during service. The Board notes that the examiner provided no explanation for why they provided two conflicting medical opinions. Further, the statement that the melanoma was not caused by the melanoma during service is contradictory to their statement just above that the melanoma was not diagnosed during service. Nieves-Rodriguez, 22 Vet. App. at 301. Finally, a lack of medical documentation of treatment alone is an insufficient basis to find a lack of nexus. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Shortly after these opinions, the Veteran telephoned VA, unaware that the RO had just provided a positive nexus opinion and expressed concern that the January 2020 private medical opinion and other private medical records were not considered in the January 2020 VA opinions. As a result, the RO ordered a new VA medical opinion. In July 2020, the RO obtained a negative nexus opinion. There, the examiner explained that the causes of melanoma are believed to be skin damage due to sun exposure, and ultraviolet light exposure over a long period of time. The examiner stated that not all melanomas required sun exposure to initiate activity, and other causes included a strong genetic predilection, skin type, age of the first sun event/burn, frequency and duration of burns and sun exposure, and a history of other sun-related skin cancers. The examiner explained that despite the Veteran's claims, there is no single event or single timeframe that can establish when the Veteran was predisposed to melanoma. The examiner continued that almost all youth experience sun events/burns, and there's nothing to indicate in the Veteran's service that a severe event of any predisposing event occurred in service, including any abnormal skin tumor to suggest melanoma identified in the STRs, or records proximate to service. The examiner explained that by the Veteran's logic, almost anyone serving in military would be at extreme risk for skin cancers, and most youths have sun exposure regardless of military service, and there is no evidence in the literature to suggest those serving in the military have a higher rate of melanoma than the normal general population. The examiner opined that as the changes in skin leading to melanoma occur over a generally long period of time, it is less likely than not that the Veteran's skin cancer arose in service, or is due, in particular, to sun exposure in service. Taking all medical and lay statements into account, the Board concludes that the evidence is in relative equipoise, meaning that the evidence for and against the Veteran's claim is essentially equal. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board affords low probative value to the negative June 2019 VA medical opinion for aggravation of a condition that existed prior to service, the positive January 2020 private medical opinion, and the negative January 2020 VA medical opinion because they failed to provide sufficient supporting rationale. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez, 22 Vet. App. at 301. Of the opinions that are probative, the Board finds that they are in relative equipoise. The negative June 2019 VA medical opinion for direct service connection, the positive January 2020 VA medical opinion, and the negative July 2020 VA medical opinion are supported by a review of the medical records, consideration of the Veteran's lay statements regarding in-service exposure, and consider relevant medical literature. See Nieves-Rodriguez, 22 Vet. App. at 302-04 (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). However, each of the probative opinions hold some deficiencies that do affect their probative value. The June 2019 and January 2020 opinions did not consider the lay statements that the Veteran did not experience significant sun exposure in their post-service career. When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base their opinion that there is no relationship to service on the absence of in-service corroborating medical records). The July 2020 opinion stated that there is no single event or single timeframe that can establish when the Veteran was predisposed to melanoma during service, but failed to discuss the STRs noting a rash following significant sun exposure, and an incident of sun poisoning. See Nieves-Rodriguez, 22 Vet. App. at 302-04. Nonetheless, the common theme throughout the probative opinions of record is that melanoma takes many years to develop, and that it is difficult to ascertain the actual cause of melanoma. As the positive and negative opinions of record are in relative equipoise, the Board resolves reasonable doubt in the Veteran's favor. Accordingly, service connection is granted for right ear melanoma in situ. SARAH B. RICHMOND Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.