Citation Nr: 18156165 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 15-21 200 DATE: December 7, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for skin cancer is reopened. Service connection for skin cancer, diagnosed as basal cell carcinoma, squamous cell carcinoma, melanoma insitu, and melanoma, is granted. REMANDED The claim of entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. In an April 2011 rating decision, the Agency of Original Jurisdiction (AOJ) declined to reopen a claim of entitlement to service connection for skin cancer. 2. The evidence received since the April 2011 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for skin cancer, and raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt in the Veteran’s favor, skin cancer, diagnosed as basal cell carcinoma, squamous cell carcinoma, melanoma insitu, and melanoma, is related to herbicide exposure during service. CONCLUSIONS OF LAW 1. The April 2011 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for skin cancer. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for skin cancer, diagnosed as basal cell carcinoma, squamous cell carcinoma, melanoma insitu, and melanoma, are met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Skin Cancer Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, “[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.” Watson v. Brown, 4 Vet. App. 309, 314 (1993). A Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). For purposes of application of this legal presumption, service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). In this case, the record supports the Veteran’s service in Vietnam. VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents. Those diseases that are listed at 38 C.F.R. § 3.309(e) shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. The Board observes that cancers of the skin are not among those diseases listed at 38 C.F.R. § 3.309(e); however, the provisions for presumptive service connection do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that his exposure to Agent Orange led to the development of the claimed disability after service. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). As noted above, the Board has concluded that new and material evidence has been received to reopen the claim of entitlement to service connection for skin cancer. Moreover, the Board concludes that service connection is warranted. In support of his most recent petition to reopen, the Veteran submitted July 2014 and March 2018 statements from his long-time treating dermatologist. This provider indicated that he had been the Veteran’s dermatologist since 1998, and that he had conducted numerous skin biopsies and excisions in that time. He noted that the Veteran had a history of basal cell carcinoma, squamous cell carcinoma, melanoma insitu, and melanoma. He additionally noted that the Veteran continued to suffer from development of new suspected cutaneous malignancies and was at risk for metastasis. He stated that in his practice, the Veteran’s young age and continued development of premalignant and malignant cutaneous lesions was unusual, and were more likely than not caused by his dioxin exposure and unprotected ultraviolet exposure during service. As there is an informed medical opinion linking the claimed skin cancer to the Veteran’s service, the Board concludes that the evidence on this matter is in equipoise, and that service connection is in order. REASONS FOR REMAND The issue of entitlement to service connection for hypertension is remanded. The Veteran has hypertension, and the evidence establishes service in Vietnam. See 38 C.F.R. § 3.307(a) (2017). Hypertension is not one of diseases listed under 38 C.F.R. § 3.309(e) for which a presumption of service connection based on herbicide exposure applies. The National Academy of Sciences (NAS) has concluded, however, that there is “limited or suggestive” evidence of an association between exposure to Agent Orange and hypertension. See Nat’l Acad. of Sci., Inst. of Med., Veterans and Agent Orange: Update 2010 (2011) at 694; 77 Fed. Reg. 47,924-01 (Aug. 10, 2012). Given the 2010 NAS update, there is an indication that the Veteran’s diagnosed hypertension may be associated with his herbicide exposure, thus triggering VA’s duty to obtain a medical opinion. See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, a VA examination is necessary to determine whether the Veteran’s hypertension is related or attributable to his time on active duty. The matter is REMANDED for the following action: Schedule the Veteran for an examination to determine the nature and etiology of his hypertension. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the VA clinician is asked to provide an opinion regarding whether it is at least as likely as not that hypertension was incurred in, or is otherwise related, to active service, to include herbicide agent exposure. In rendering this opinion, the clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Barone, Counsel