Citation Nr: 1615141	
Decision Date: 04/14/16    Archive Date: 04/26/16

DOCKET NO.  12-28 192	)	DATE
	)
	)

On appeal from the decision of the 
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim of entitlement to service connection for postoperative residuals of left ankle melanoma, to include as due to Agent Orange/herbicide exposure.

2.  Entitlement to service connection for postoperative residuals of left ankle melanoma.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARINGS ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Siobhan Brogdon, Counsel


INTRODUCTION

The Veteran served on active duty in the Marines from August 1966 to March 1972.  He had Vietnam service. 

This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a January 2010 rating decision of the VA Regional Office in Chicago, Illinois.

The Veteran was afforded a personal hearing at the RO in June 2012 before a Decision Review Officer and a videoconference hearing at the RO in February 2016 before the undersigned Veterans Law Judge sitting at Washington, DC.  The transcripts are of record. 

Following resolution of the threshold issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for left ankle cancer, the issue of entitlement to service connection for postoperative residuals of left ankle melanoma is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Service connection for left ankle cancer, to include as due to herbicide exposure, was denied by an RO rating decision in November 2005; the Veteran did not file an appeal within one year of notification of the decision and it is final.

2.  The evidence added to the record since the final determination is relevant and probative of the issue of entitlement to service connection for postoperative residuals of left ankle cancer. 


CONCLUSION OF LAW

New and material evidence sufficient to reopen the claim of service connection for postoperative residuals of left ankle melanoma, to include as due to Agent Orange/herbicide exposure, has been received since the final determination and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015).  However, the Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable where further assistance would not aid the appellant in substantiating a claim. Wensch v. Principi, 15 Vet.App. 362 (2001); see also 38 U.S.C.A. § 5103A(a)(2). In view of the Board's favorable decision to reopen the claim of entitlement to service connection for postoperative residuals of left ankle cancer, to include as due to Agent Orange/herbicide exposure, further assistance is unnecessary to aid the appellant in substantiating this aspect of the appeal.

Pertinent Law and Regulations

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015).

Certain chronic diseases, to include cancer, may be presumed to have been incurred in service if manifested to a degree of 10 percent disabling or more within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015).

New and material evidence to reopen the claim of service connection for postoperative residuals of left ankle cancer, to include as due to Agent Orange/herbicide exposure.

Factual Background and Legal Analysis

Service connection for left ankle and soft tissue sarcoma, to include as due to herbicide exposure, was originally denied in a November 2005 rating decision.  The Veteran did not file an appeal.  This determination is final. 38 U.S.C.A. § 7105.  The Board must therefore review all of the evidence submitted since the last final disallowance to determine whether the appellant's claim of entitlement to service connection should be reopened and re-adjudicated de novo. See Evans v. Brown, 9 Vet. App. 273 (1996). 

A claim that is the subject of a final decision may be reopened upon the submission of new and material evidence. 38 U.S.C.A. § 5108.  New evidence is evidence not previously submitted to agency decision makers.  Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2015).  In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The evidence that was of record prior to the RO's November 2005 rating decision denying service connection for residuals of left ankle sarcoma included service treatment records showing no complaints or findings pertaining to the left ankle or cancer.  A malignancy of the left ankle was not shown within one year of discharge from active duty.  Moreover, the Veteran did not provide any medical evidence to show that he had been diagnosed or treated for the sarcoma or cancer or other left ankle impairment.  

By rating action in November 2005, service connection was denied on the basis that there was no evidence of disability for which service could be granted.  

The Veteran attempted to reopen the claim of entitlement to service connection for left ankle soft tissue sarcoma in a claim received in August 2009.  

Evidence added to the record following the 2005 denial of the claim includes private clinical records showing that the appellant underwent MOHS microscopic surgery for melanoma in-situ of the left ankle in April 2004.  In March 2010, K. L. Maloney, M.D., wrote that she was a dermatologist who had treated the Veteran since February 2004 for many skin-related problems, including melanoma in 2004.  She related that the appellant had approached her about the possibility that melanoma may have been caused by exposure to dioxin (a component of Agent Orange) during his time in Vietnam.  The physician stated that a search of the literature pertaining to United States Air Force Vietnam War Veterans and Agent Orange supported the concern that there was an increase in melanoma in those specific cases.  Dr. Maloney appeared to impute this finding to servicemembers in general, to include the Veteran.

The Board has carefully reviewed the record and finds that the provisions of 38 C.F.R. § 3.156 are applicable to the instant matter.  At the time of the November 2005 rating decision, there was no evidence that the Veteran had the disability for which he sought service connection.  Since that time, however, not only have clinical records been received showing that he had melanoma of the left ankle, but a private dermatologist has submitted a clinical opinion indicating that the medical literature supports a finding of an increased incidence of melanoma due to dioxin exposure in Vietnam.  These two factors support the claim in a manner not previously demonstrated.  The Board thus finds that such evidence is new and material and serves as a basis to reopen and reconsider the claim of entitlement of service connection for postoperative residuals of left ankle cancer, to include as due to Agent Orange/herbicide exposure under 38 C.F.R. § 3.156.  As such, the claim is reopened.  This matter is further addressed in the REMAND below.


ORDER

New and material evidence has been received to reopen the claim of entitlement to service connection for postoperative residuals of left ankle melanoma, to include as due to Agent Orange/herbicide exposure; the appeal is granted to this extent.


REMAND

The appellant asserts that he developed melanoma of the left ankle as the result of Agent Orange/herbicide exposure in Vietnam for which service connection is warranted.  

The Veteran served in the Marines with a military occupational specialty of helicopter pilot.  On personal hearing in February 2016, he testified that one of his duties in Vietnam was spraying chemical defoliant which was inside the aircraft with him.  As the Veteran served in Vietnam, exposure to Agent Orange/herbicides is presumed.  

As indicated above, the Veteran's private dermatologist maintains that the clinical literature supports an increased incidence of melanoma in United States Air Force Vietnam War Veterans exposed to Agent Orange and appears to relate this finding to the Veteran.  The physician attached a copy of the study in this regard. 

The record does not reflect that this matter has been considered by VA on examination.  Under the circumstances, the case will be remanded for a specialist examination of the record, to include a medical opinion as to whether exposure to Agent Orange/herbicides was implicated in the Veteran's left ankle melanoma or is otherwise the result of exposure to Agent Orange/herbicides. See Combee v. Brown, 34 F.3d 1039, 1044, citing 38 U.S.C.A. §§ 1113(b), 1116 (2014); 38 C.F.R. § 3.303 (2015).

Additionally, review of the record discloses that in July 2009, the Veteran submitted authorization to retrieve clinical records from Edward Hines Jr. VA Hospital indicating that he sought treatment there for disorders not pertinent to the current appeal.  The claims file does not indicate that these records were requested.  VA outpatient clinical data of record date from February 2014.  As there is potential notice of the existence of VA records, they must be retrieved and associated with the other evidence on file. See Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Epps v. Brown, 9 Vet.App. 341 (1996); Robinette v. Brown, 8 Vet.App. 69 (1995).  In view of the fact that the Veteran seeks service connection for a presumptive disease, VA outpatient records dating from 1972 through 2013 should be requested and associated with Virtual VA/VBMS.

Accordingly, the case is REMANDED for the following actions:

1.  Request all VA outpatient records dating from 1972 through 2013 from Hines VA Medical Center and associate them with Virtual VA/VBMS, to include any that may be retired or on microfilm.  All attempts to obtain the records must be documented.

2.  Following a reasonable time for receipt of the above, but whether records are received or not, refer the claims file to a VA physician who is specialist in Agent Orange-related diseases or to a VA oncologist for review of the record and a medical opinion.  A comprehensive clinical history should be recited, to include a discussion of the Veteran's documented medical history and assertions.  After a thorough review of the evidence, the examiner should respond to the following question: 

Is it at least as likely as not (a 50 percent probability or better) the Veteran's left ankle melanoma may be found to have been etiologically related to Agent Orange/herbicide exposure in Vietnam, or other incident of service, or whether it is more likely of post service onset and unrelated to service and exposure to Agent Orange/herbicides therein.

The examiner should provide thorough and detailed rationale for the opinion and the report must be returned in a narrative format.  Discussion of the literature on file is also requested.

3.  After taking any further development deemed appropriate, re-adjudicate the issue on appeal.  If the benefit is not granted, provide a supplemental statement of the case to the Veteran and his representative before the case is returned to the Board.  

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


		
MICHAEL D. LYON
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs