Citation Nr: 1330074	
Decision Date: 09/19/13    Archive Date: 09/25/13

DOCKET NO.  11-28 046	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Whether new and material evidence has been received to reopen a claim for service connection for skin cancer, and if so whether the claim should be granted.  


REPRESENTATION

Appellant represented by:	Rebecca C. Patrick, Esquire


ATTORNEY FOR THE BOARD

N. Snyder, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 

The Veteran served on active duty from April 1947 to March 1952.  This appeal comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  Jurisdiction over the case was subsequently returned to the Columbia, South Carolina RO.  

When this case was before the Board in April 2012, the Board denied the application to reopen the claim for service connection for skin cancer.  The Veteran appealed the denial of the claim to reopen to the United States Court of Appeals for Veterans Claims (Court).  In January 2013, the Court granted a joint motion of the parties and remanded the matter to the Board for action in compliance with the joint motion.

In April 2012 the Board also remanded other issues to the originating agency for further action.  The remanded issues remain in remand status.

The issue of entitlement to service connection for skin cancer is addressed in REMAND that follows the ORDER section of this decision.


FINDINGS OF FACT

1.  Entitlement to service connection for skin cancer was denied in a January 1999 rating decision; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period.

2.  The evidence received subsequent to the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for melanoma.



CONCLUSION OF LAW

New and material evidence to reopen the claim of entitlement to service connection for skin cancer has been presented.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Legal Criteria

Generally, a claim which has been denied in an unappealed RO decision may not be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002).  An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 

Factual Background and Analysis

Entitlement to service connection for skin cancer was denied in a January 1999 rating decision because the evidence did not show that the Veteran's melanoma was related to service.  The Veteran was notified of this decision but did not appeal the decision or submit pertinent evidence within the appeal period.  In the joint motion, the parties agreed that the January 1999 rating decision is the last final denial of the claim.

The evidence received after the January 1999 decision includes evidence of the Veteran's in-service sun exposure from serving as a lifeguard in Hawaii and an Internet article reporting that "many years of exposure to strong sunlight seem to play a part in the development of [melanoma]."  This evidence is not cumulative or redundant of the evidence previously of record.  Moreover, it relates to an unestablished fact necessary to substantiate the claim.  Accordingly, reopening of the claim is in order.


ORDER

The Board having determined that new and material evidence has been received, reopening of the claim for service connection for skin cancer is granted.



REMAND

The Veteran has contended that his melanoma resulted from in-service sun exposure, namely from working as a lifeguard in Hawaii.  The record indicates that the Veteran was transferred to a duty station in Hawaii in July 1951.  Based on this history and the evidence linking melanoma to sun exposure, a VA opinion is needed to determine the etiology of the Veteran's melanoma.  The Board finds an opinion, and not an examination, is most appropriate based on the evidence that the Veteran has a significantly impaired memory.  See January 2011 VA examination record (Veteran not competent to manage financial affairs due to impaired memory).  

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1.  Undertake appropriate development to obtain any outstanding medical records pertinent to the claim.

2.  Then, the claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders should be provided to a physician with sufficient expertise to determine the etiology of the Veteran's skin cancer.  After reviewing the record, the examiner should opine whether it is at least as likely as not (50 percent or better probability) that the melanoma began during service or is otherwise etiologically related to service, to include the reported in-service sun exposure while stationed in Hawaii.  A rationale should be provided for any opinion expressed, with discussion of the reported in-service sun exposure and the articles of record as to the causes of melanoma.  The examiner is informed that the Veteran has previously reported post-service jobs for a carnival as a "roustabout," at a ranch, and as a groomer (and hot walker) of racehorses and has indicated that he lived in California and South Carolina after service.  If the examiner is unable to provide any required opinion, he or she should explain why.

The examiner should also state an opinion as to whether the solar radiation claimed by the Veteran qualifies as ionizing radiation.

3.  If the physician indicates that the solar radiation claimed by the Veteran qualifies as ionizing radiation, the RO should undertake any indicated development under 38 C.F.R. § 3.311.

4.  The RO should undertake any other development it determines to be warranted.

5.  Then, the Veteran's claim should be adjudicated on a de novo basis.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, issue a supplemental statement of the case to the appellant and his representative and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The appellant need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).


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As noted above this case has been advanced on the Board's docket.  It must be handled in an expeditious manner by the RO.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs