Citation Nr: 20007622 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 12-35 646 DATE: January 29, 2020 REMANDED Entitlement to service connection for asthma, to include as due to in-service exposure to herbicides, is remanded. Entitlement to service connection for melanoma with scar, to include as due to in-service exposure to herbicides, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to October 1970. This matter come before the Board on Veterans’ Appeals (Board) on appeal of an October 2010 rating decision by the Department of Veteran’s Affairs (VA) Regional Office (RO). In August 2017, the Board rendered a decision denying entitlement to service connection for asthma and melanoma. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). On June 11, 2018, the parties agreed to a Joint Motion for Partial Remand (JMPR) moving the Court for an Order vacating and remanding the Board decision. By an Order dated June 13, 2018, the Court granted the parties JMPR and remanded the matter to the Board for actions consistent with the JMPR. In November 2018, the Board remanded the matters for further development consistent with the JMPR. The matters have now returned to the Board for review. 1. Entitlement to service connection for asthma, to include as due to in-service exposure herbicide exposure 2. Entitlement to service connection for melanoma with scar, to include as due to in-service herbicide exposure The Veteran contends he is entitled to service connection for his asthma and melanoma disabilities, to include as due to in-service herbicide exposure. The Veteran’s service personnel records confirm that he served in the Republic of Vietnam during the Vietnam era, and it is therefore presumed that he was exposed to Agent Orange during service. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307. In addition, his post-service medical treatment records show a current diagnosis of asthma and melanoma. Asthma and melanoma are specifically excluded as diseases presumed to have resulted from exposure to herbicide agents. See 75 Fed. Reg. 53,202, 53,204 (Aug. 31, 2010). However, a claimant is not precluded from establishing service connection for such with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran had a VA examination for respiratory conditions in September 2019. The VA examiner was asked to opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s asthma had its onset in, or is otherwise related to his military service, to include as due to presumed in-service exposure to herbicides. The VA examiner opined that the Veteran’s asthma was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the examiner stated that the Veteran’s in-service medical records are silent for complaints and/or diagnosis of asthma and that the Veteran denied asthma and asthma symptoms at his discharge examination and had a normal respiratory evaluation. The examiner further stated that the Veteran’s medical records do not show treatment for asthma until 1983 and concluded that a nexus had not been established. The Board notes that the VA examiner based her opinion on a lack of medical records showing treatment and did not provide an adequate rationale for finding that the Veteran’s asthma was not proximately due to or the result of in-service exposure to herbicides. In addition, the VA examiner addressed the issue of secondary service connection, an issue that has not been raised, and only then addressed the issue of respiratory diseases and exposure to Agent Orange. For the foregoing reasons, the Board finds that this opinion is inadequate for decision-making purposes. The Veteran had VA examinations for skin diseases and scars in September 2019. The VA examiner was asked to opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s melanoma with scar had its onset in, or is otherwise related to his military service, to include as due to presumed in-service exposure to herbicides. The VA examiner opined that the Veteran’s asthma was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner then provided a rationale for a denial of service connection on a secondary basis. The examiner stated that the “two conditions” are not medically related. The examiner then stated that the medical literature does not support a medical relationship between exposure to herbicides and melanoma. She then cited to a January 2014 article in “Science News” entitled “Agent Orange linked to skin cancer risk, report suggests.” The article states that Vietnam War veterans with exposure to the herbicide Agent Orange may be at a higher risk for certain types of skin cancer, an assertion that is at odds with the examiner’s rationale for her unsought opinion as to “secondary” service connection. Thus, the examiner failed to provide the requested opinion as to whether the Veteran’s melanoma with scar, had its onset in, or is otherwise related to military service, to include as due to in-service exposure to herbicides. Therefore, this opinion is also inadequate for decision-making purposes. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records relevant to asthma and melanoma with scar. The Veteran is invited to submit directly to VA any relevant records he has in his possession or that he obtains himself. 2. After the above development, forward the record and a copy of this Remand to a qualified examiner other than the one who conducted the September 2019 VA respiratory conditions examination. Additional examination of the Veteran should be schedule if deemed by the examiner to be necessary for an adequate opinion. The examiner must address the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s asthma was incurred in or caused by service, to include as due to his presumed in-service herbicide exposure. A complete rationale should be provided for the opinion given. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner should also note that while asthma is not among the conditions for which presumptive service connection is available under VA regulations 38 C.F.R. §§ 3.307 and 3.309(e), such presumptive regulations do not preclude direct service connection based on actual causation due to exposure to Agent Orange or any other event/injury in service. The examiner is advised that the Veteran is competent to report symptoms, and that his contentions must be considered in formulating the requested opinion. If the Veteran's contentions are discounted, the examiner should provide a reason for doing so. 3. Forward the record and a copy of this Remand to a qualified examiner other than the examiner who completed the September 2019 VA skin diseases and scar examinations. Additional examination of the Veteran should be schedule if deemed by the examiner to be necessary for an adequate opinion. The examiner must address the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's melanoma with scar was incurred in or caused by service, to include as due to his presumed in-service herbicide exposure. A complete rationale should be provided for the opinion given. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner should also note that while melanoma is not among the conditions for which presumptive service connection is available under VA regulations 38 C.F.R. §§ 3.307 and 3.309(e), such presumptive regulations do not preclude direct service connection based on actual causation due to exposure to Agent Orange or any other event/injury in service. The examiner is advised that the Veteran is competent to report symptoms, and that his contentions must be considered in formulating the requested opinion. If the Veteran's contentions are discounted, the examiner should provide a reason for doing so. 4. After completion of the above, review the expanded record, including any evidence entered since the November 2019 supplemental statement of the case, conduct any additional development deemed necessary, and readjudicate the issues on appeal. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case.   The appropriate period should be allowed for response before the appeal is returned to the Board. U.R. Powell Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Susan E. Leary, Associate Counsel 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.