Citation Nr: 22015153 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-52 422 DATE: March 16, 2022 ORDER Entitlement to service connection for malignant melanoma, to include as due to herbicide exposure, is denied. FINDING OF FACT Malignant melanoma was not shown in service, was not continuous since service, and was not shown to a compensable degree within one year of separation from service; melanoma is not causally or etiologically related to service, to include as due to exposure to herbicides, including Agent Orange. CONCLUSION OF LAW The criteria for service connection for malignant melanoma, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to August 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was last before the Board in May 2019, when the Board remanded the service connection claim for malignant melanoma. The Board found that a VA medical opinion was warranted. This opinion was produced in November 2020, and the case is again before the Board. Certain diseases associated with in-service Agent Orange exposure are presumed to be service connected if the disease is manifested to a compensable degree within a specified time period. 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to an herbicide agent, including Agent Orange, during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. This list does not include malignant melanoma. Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated during military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Further, malignant melanoma is a chronic disorder under 38 C.F.R. § 3.309, and presumptive service connection will be addressed, as well as direct service connection. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). If there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As an initial matter, the Board acknowledges that the Veteran has contended that his malignant melanoma is attributable to his exposure to herbicide agents while in service. Additionally, in the May 2019 Board decision, the Board resolved reasonable doubt in favor of the Veteran that he was exposed to herbicides while stationed at U-Tapao Royal Thai Navy Airfield. Thus, herbicide exposure has been conceded. Turning first to direct service connection, the Veteran has been diagnosed with malignant melanoma. Specifically, he was diagnosed with malignant melanoma in 2013. A review of the service treatment records (STRs) shows no complaints of, treatment for, or a diagnosis related to the skin during service. The July 1973 separation examination reflected multiple nevi on the back chest, and abdomen, but did not indicate any findings related to a skin disorder, including melanoma. The Veteran indicated on a July 1973 Standard Form 93 Report of Medical History that he did not have/had any skin disease or tumor, growth, cyst, or cancer. Therefore, the medical evidence does not support the in-service incurrence of a skin disorder. The Veteran's VA medical records show in February 2010, the Veteran was seen by a dermatologist for a bump on his head. The dermatologist noted the Veteran related the bump to excessive sun exposure during his lifetime. In May 2013, the Veteran presented with a right leg lesion. A September 17, 2013 pathology report noted malignant melanoma on the right leg, which was excised. The Veteran was afforded a VA examination in October 2016. The VA examiner noted the diagnosis of malignant melanoma from 2013. However, the examiner did not provide an etiology opinion. As a result of the May 2019 Board remand, VA obtained an addendum opinion from a record review in November 2020. The examiner opined that it was less likely than not the Veteran's malignant melanoma had its onset during or is otherwise etiologically related to active duty service, to include exposure to herbicide agents. The examiner stated that the service treatment records were reviewed, and they did not support a history of onset of malignant melanoma during active service. Additionally, the examiner stated that the malignant melanoma is not related to exposure to herbicide agents, and there is no established association between malignant melanoma and prior herbicide exposure. The examiner stated that the risk factors for malignant melanoma that were present in the Veteran's medical history were history of excessive sun exposure and Caucasian background. As to presumptive service connection, malignant melanoma was not shown in service and did not manifest to a compensable degree within one year of separation from service. Specifically, in 2013, nearly 40 years after separation from service, the Veteran noticed a lesion on his right leg. As such, this is well outside the one-year legal presumption for chronic disorders such as malignant melanoma. Next, the record does not establish continuity of symptomatology. As noted above, the evidence shows that the Veteran's first recorded skin disorder was identified as early as 2013, around 40 years after separation. In light of the above, the medical evidence does not support service connection based on chronicity or continuity of symptomatology. Even assuming an in-service incurrence based on the Veteran's lay testimony regarding herbicides, no medical professional has opined that current malignant melanoma is related his in-service exposure. Although the Veteran is certainly capable of describing the history in this case as well as his symptoms, his statements cannot sufficiently and persuasively serve to address questions of causation between herbicides and malignant melanoma, because these are complex medical questions beyond the purview of lay knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau, 492 F.3d at 1377. Such competent evidence has been provided by the service records and clinical evidence obtained and associated with the claims file. Here, the Board attaches greater probative weight to the medical records and clinical evidence than to the Veteran's statements. In light of the above, the evidence is not in approximate balance, and that the evidence persuasively favors a finding that the criteria for the benefit sought have not been met. There is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. As such, the appeal is denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hetman 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.