Citation Nr: 18149746 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 17-47 449 DATE: November 13, 2018 REMANDED Entitlement to service connection for skin cancer is remanded. Entitlement to service connection for salivary gland cancer, to include as secondary to skin cancer is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1969 to November 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an July 2016 rating decision. The Veteran submitted new and material evidence within one year of the September 2015 rating decision regarding the Veteran’s claim for service connection for skin cancer. Specifically, the Veteran submitted private treatment records relating to his skin cancer. See 38 C.F.R. § 3.156(a) (defining new and material evidence). Accordingly, the Board finds that the appeal of the July 2016 rating decision relates back to the Veteran’s initial claim for service connection for skin cancer. See 38 C.F.R. § 3.156(b) (providing that if new and material evidence is received within one year after the date of mailing of a rating decision, it will be “considered as having been filed in connection with the claim which was pending at the beginning of the appeal period”); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of a rating decision prevents that decision from becoming final). The Board notes that the Veteran submitted evidence in August 2017, more than one year after the issuance of the June 2016 Statement of the Case (SOC). Under 38 U.S.C. § 7105(e), for cases in which substantive appeals are received on or after February 2, 2013, if the claimant or the claimant’s representative submits evidence to the Agency of Original Jurisdiction (AOJ) or the Board for consideration in connection with the issues on appeal, the Board may consider such evidence in the first instance unless the claimant or representative requests in writing that the AOJ initially review such evidence. Because the claims folder does not contain a written request that the AOJ initially review this evidence, the Board will consider this evidence in the first instance. 1. Entitlement to service connection for skin cancer is remanded. The June 2016 VA medical opinion for skin cancer is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination must be based on consideration of the claimant’s medical history and must describe the disability in sufficient detail so that the Board’s evaluation of the disability will be a fully informed one). The medical opinion does not appear to consider the Veteran’s medical history. While the VA examiner provided that a review of the Veteran’s medical records occurred, the medical opinion advises that no relevant data or diagnostic information was found. However, a review of the Veteran’s VA treatment records and private treatment records reveals the opposite, as he received extensive treatment for his skin cancer. The June 2016 VA medical opinion is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458 (1993) (a medical opinion based on an inaccurate factual premise is not probative). The examiner concluded that there was no link between the Veteran’s claimed skin cancer and his active service because there was no pathology to render a diagnosis. But, the Veteran’s private treatment records reveal that he has a positive medical history for skin cancer and he received treatment for skin cancer. Additionally, a January 2016 private treatment record indicates the Veteran has squamous cell carcinoma in situ at the scalp and right forehead. The Board also notes in August 2017, the Veteran’s treating physician indicates that the Veteran received medical treatment for actinic keratosis, multiple squamous cell carcinoma in-situ’s, and squamous cell carcinoma. The private physician’s written statement provides that extended periods of sun exposure will cause these types of lesions to arise and given the Veteran’s 20-year military service, duties, and activities, he accumulated a significant amount of sun damage that greatly increased his chances for developing skin cancer. On remand, an adequate VA medical examination and opinion must be provided concerning whether the Veteran’s skin cancer is linked to his active service. 2. Entitlement to service connection for salivary gland cancer, to include as secondary to skin cancer is remanded. The Veteran’s claim for service connection for salivary gland cancer is based, in part, on first obtaining service connection for skin cancer as the Veteran claims his salivary gland cancer is proximately due to, or aggravated by, his skin cancer. Thus, the claim for service connection for salivary gland cancer is inextricably intertwined with the claim for service connection for skin cancer. See 38 C.F.R. § 4.16(a); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the Veteran’s claim for service connection for salivary gland cancer must be remanded as well. Additionally, because there is at least an indication that the Veteran’s current salivary gland cancer may be related to his active duty service, a VA examination and opinion must be provided to make an informed decision on this claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is not competent to substitute its own opinion for that of a medical expert). VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon, 20 Vet. App. 79. The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. The Veteran’s private treatment records indicate that he has been diagnosed with metastatic squamous cell carcinoma of the left parotid. As noted above, the Veteran has a history of skin cancer. Therefore, the above threshold having been met, a VA examination and opinion must be provided to make an informed decision on the Veteran’s claim for service connection for salivary gland. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any physicians and facilities adequately identified by the Veteran. Make two requests for the authorized records from physicians and facilities adequately identified by the Veteran, unless it is clear after the first request that a second request would be futile. 2. After the above development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any skin cancer. (a.) The examiner must identify all current skin cancer(s) present during the Veteran’s appeal. (b.) The examiner must opine whether any identified skin cancer is at least as likely as not related to an in-service injury, event, or disease, including in-service sun exposure. In providing the opinion, the examiner must discuss: (c.) An August 2017 written statement from the Veteran’s private treating physician, which stated that the Veteran accumulated a significant amount of sun damage during the activities and duties over his 20-year military service, which greatly increased his chances for developing skin cancer. (d.) An August 2015 article from the American Cancer Society that provides that most skin cancers are a direct result of exposure to UV rays in sunlight. (e.) A January 2011 article entitled: Squamous Carcinoma in a Major Salivary Gland: A Review of the Diagnostic Considerations. (f.) A 2007 Skin Cancer Foundation article that provides that basal cell carcinoma and squamous cell carcinoma are directly correlated with sun accumulation over many years. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s salivary gland cancer. (a.) The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. (b.) If it is determined that the Veteran has a service-connected skin cancer (pursuant to directive #2), the examiner must also opine whether it is at least as likely as not: (1) proximately due to his skin cancer; or (2) aggravated beyond its natural progression by his skin cancer. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel