Citation Nr: 21040721 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-32 084 DATE: July 6, 2021 ORDER Entitlement to service connection for melanoma with brain and lung metastases (claimed as lung cancer) (hereinafter "metastatic melanoma") is granted. Entitlement to service connection for cause of death is granted. FINDINGS OF FACT 1. The Veteran's metastatic melanoma is etiologically related to service. 2. The Veteran's metastatic melanoma was the principal cause of his death. CONCLUSIONS OF LAW 1. The criteria for service connection for metastatic melanoma have been met. See 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for cause of death have been met. See 38 U.S.C. §§ 1110, 1116, 1310; 38 C.F.R. §§ 3.5, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to July 1968, with service in the Republic of Vietnam. He died in October 2013. The Appellant is the Veteran's surviving spouse. These matters come to the Board of Veterans' Appeals (Board) from an October 2013 rating decision that denied service connection for metastatic melanoma, and a June 2014 rating decision that denied service connection for cause of death. In April 2021, the Appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Entitlement to service connection for metastatic melanoma is granted. In written pleadings and at the April 2021 hearing, the Appellant asserts that service connection is warranted on a direct basis for metastatic melanoma, as due to exposure to herbicide agents or the sun, or on a presumptive basis for primary lung cancer that could not be confirmed due to the Veteran's health. Service connection may be granted for a disability resulting from an injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, a veteran must establish: (1) evidence of a current disability; (2) in-service incurrence or aggravation of an injury; and (3) a causal relationship between the current disability and the injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for certain diseases associated with exposure to herbicide agents. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who served in the Republic of Vietnam from January 9, 1962, through May 7, 1975, is presumed to have been exposed to herbicide agents during such service. See 38 C.F.R. § 3.307(a)(6)(iii). An April 1966 pre-induction examination showed that the Veteran had no skin abnormalities or defects. The Veteran's service treatment records did not identify any complaints of or treatment for sunburns. A July 1968 separation examination showed that the Veteran had no skin abnormalities or defects. The Veteran's DD 214 listed his military occupational specialty (MOS) as engine and power train repairman. In an April 2013 letter, the Veteran's oncologist, Dr. A.D., stated that he had treated the Veteran since July 2009 when a lesion on the Veteran's back was confirmed as melanoma. Dr. D. stated that the Veteran was diagnosed with squamous cell and other skin cancers over the last couple of decades. Dr. D. stated that a March 2012 colonoscopy found a polyp that was confirmed as melanoma and that additional testing showed metastases in the brain and lungs. After noting that the Veteran had extensive exposure to herbicide agents during service in the Republic of Vietnam, Dr. D. opined that there appeared to be some link between skin cancer and exposure to herbicide agents, and he could not rule out a link between the Veteran's exposure to herbicide agents and his history of skin cancer and melanoma. At a September 2013 VA examination with Dr. M.T., the Veteran reported significant exposure to herbicide agents and the sun during service in the Republic of Vietnam. The Veteran reported that, during service, he worked outside in only shorts and shoes to keep cool and reported good skin coverage from the sun after service. Dr. T. noted that the Veteran reported a history of skin lesions, but denied that any lesion was diagnosed as melanoma. Dr. T. diagnosed the Veteran with metastatic melanoma. Dr. T. stated that the Veteran's prior skin lesions appeared to be unrelated to his melanoma because he had never been diagnosed with a skin lesion consistent with melanoma. Dr. T. also noted that melanoma was not recognized as a presumptive disease associated with exposure to herbicide agents. In an addendum opinion, Dr. T. stated that there was a high degree of certainty that the Veteran had metastatic melanoma and that it was highly unlikely that the Veteran had any other cancers. In a February 2014 letter, the Veteran's dermatologist, Dr. M.M., stated that he had treated the Veteran since September 1994. Dr. M. stated that the Veteran had multiple melanomas since 1997 and had a melanoma on his back in 2009 that later metastasized and resulted in his death. Dr. M. stated that the Veteran had significant and intense exposure to the sun due to his outdoors occupation during service in the Republic of Vietnam, without the benefit of sunscreen to help mitigate the damaging ultraviolet solar rays. Dr. M. also stated that the Veteran had multiple sunburns as a result. Dr. M. opined that there was a direct correlation between the Veteran's multiple melanomas and his military service. In a March 2014 VA Form 21-4138, the Appellant's representative submitted pictures of other veterans who had the same MOS as the Veteran to show that these veterans worked without appropriate protection or sunscreen. As a preliminary matter, the Board notes that the Veteran was in sound condition at the entrance of service based on the April 1966 pre-induction examination showing no skin abnormalities or defects. The Board finds that service connection is not warranted on a presumptive basis due to exposure to herbicide agents. While the Veteran is presumed to have been exposed to herbicide agents during service in the Republic of Vietnam, his current disability of metastatic melanoma is not one of the presumptive diseases associated with exposure to herbicide agents. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Similarly, the evidence of record, to include Dr. D.'s and Dr. M.'s diagnosis and Dr. T.'s addendum opinion, does not show that it is at least as likely as not that the Veteran also had primary lung cancer. While the Board has considered the Appellant's assertion, this assertion is not consistent with the evidence of record and does not rise to the standard of proof needed to show a current disability. The Board, however, finds that service connection for metastatic melanoma is warranted on a direct basis. The evidence of record, to include Dr. D.'s and Dr. M.'s diagnoses, establishes a current disability of metastatic melanoma. An in-service injury of exposure to herbicide agents is presumed based on the Veteran's service in the Republic of Vietnam, see 38 C.F.R. § 3.307(a)(6)(iii), and the evidence of record, to include the Veteran's lay statements, the Veteran's MOS, and the pictures of other veterans with the same MOS, shows an in-service injury of exposure to the sun without protection or sunscreen. Finally, the evidence of record, to include Dr. D.'s and Dr. M.'s opinions, shows that the Veteran's current disability is at least as likely as not related to his in-service injuries. The Board accords probative weight to these opinions because they are from specialists who considered the Veteran's lay statements and because there is no probative medical opinion against the Veteran's claim. The Board notes that Dr. T. incorrectly stated that none of the Veteran's skin lesions were diagnosed as melanoma and that Dr. T. did not provide any opinions on a direct basis due to exposure to herbicide agents or the sun. The Board also notes that, while the service treatment records did not identify any complaints of or treatment for sunburns, a veteran is competent to identify these symptoms, and the Board finds the Veteran's lay statements of sunburns credible. Accordingly, the Board finds that the claim of service connection for metastatic melanoma is granted. Entitlement to service connection for cause of death is granted. Service connection for the cause of a veteran's death is warranted where a disability incurred in or aggravated by active military service was the principal or contributory cause of death. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A principal cause of death is one that, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. See 38 C.F.R. § 3.312(b). The October 2013 death certificate listed the Veteran's immediate cause of death as respiratory arrest with the underlying cause of death as metastatic melanoma of unknown primary origin to the brains, lungs, and colon. In a February 2014 letter, Dr. M. stated that the Veteran had a melanoma on his back in 2009 that later metastasized and resulted in his death. As stated in the prior section, the claim of service connection for metastatic melanoma was granted. As competent, credible evidence of record indicates that the underlying cause of the Veteran's death was metastatic melanoma of unknown primary origin to the brains, lungs, and colon, the Board finds that metastatic melanoma was the primary cause of the Veteran's death. Accordingly, the Board finds that the claim of service connection for cause of death is warranted. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson, 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.