Citation Nr: 21001894 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-31 520 DATE: January 12, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a skin disorder, to include malignant melanoma, is granted. REMANDED Service connection for a skin disorder, to include malignant melanoma, is remanded. FINDING OF FACT A final December 2010 rating decision denied service connection for various skin disorders; newly received evidence raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW Evidence received to reopen the claim of entitlement to service connection for a skin disorder, to include malignant melanoma, is new and material and the claim is reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1966 to January 1968, including foreign service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service and Campaign Medals. The Veteran testified before the undersigned Veterans Law Judge during an October 2020 virtual hearing. A transcript of this proceeding has been associated with the record. The Board notes that the Regional Office (RO) historically treated the matter on appeal as a service connection claim. See December 2014 rating decision; May 2017 Statement of the Case (SOC). Upon review of the relevant procedural history, the Board of Veterans’ Appeals (Board) has properly framed the matter as a new and material evidence claim. Upon its contemporaneous review of the claims file, the Board affirms this classification of the matter on appeal. Given the positive disposition herein, such action is of no detrimental impact to the Veteran. Upon the evidence of record, this appeal is now expanded to include all skin disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Briefly, the Veteran has submitted evidence in support of apparent service connection claims for multiple unrelated disorders, including hypertension, peripheral neuropathy, and hypothyroidism. However, the record does not reflect that he has submitted official claims for these disorders at any time. Effective March 24, 2015, all claims must be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. Thus, the Veteran is hereby advised of his obligation to submit such a claim should he intend to pursue compensation benefits for those identified disorders. New and Material Evidence As set forth above, the Veteran has petitioned to reopen a claim seeking service connection for a skin disorder on the basis of new and material evidence. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, “new evidence” means existing evidence not previously submitted to VA. “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. Taken in combination, 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(a). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Historically, the Veteran sought service connection for skin damage in July 2009. In pertinent part, a December 2010 rating decision denied service connection for basal cell and squamous cell carcinoma. The Veteran did not appeal this decision or submit documentation constituting new and material evidence within the one-year appeal period, such that the December 2010 rating decision became final. Subsequently, the Veteran submitted a claim seeking service connection for malignant melanoma in June 2014. Thus, the Board must determine whether new and material evidence has been submitted since the final December 2010 rating decision. Upon review of the record, new and material evidence has been received since the final December 2010 rating decision. Here, the prior final denial was based upon the RO’s conclusion that a current skin disorder did not onset during service and was not otherwise caused by service. Newly received evidence is directly relevant to this point, to include a January 2014 private treatment letter and multiple buddy statements addressing the nature of the Veteran’s military service and possible links to his current skin disorder. See, e.g., buddy statements dated May 2015, June 2015, and September 2020. Testimony offered by the Veteran during his October 2020 hearing similarly offers further context regarding a potential nexus between his service and current skin disorder. Accordingly, evidence received since the final December 2010 rating decision raises a reasonable possibility of substantiating the claim. Upon a finding of new and material evidence, the application to reopen the service connection claim for a skin disorder, to include malignant melanoma, is hereby granted. REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the service connection claim. Historically, VA nexus opinions were obtained in December 2014 and November 2020. However, these opinions do not assess all theories of entitlement as presented by the Veteran and the record. Accordingly, a remand is required such that an adequate and complete opinion may be obtained. Briefly, the Board acknowledges that the claims file contains certain evidence indicative of a potential nexus in this case. See, e.g., private opinions dated July 2009 and January 2014; September 2020 lay statement. This evidence is not so probative as to negate the need for a VA opinion, as these statements do not fully engage the standards established by VA or are sufficiently competent upon which to assess the merits of this appeal. See April 2020 lay statement (reporting the private physician’s representation that he was not familiar with the science and studies related to Agent Orange). The above determination is based upon the Veteran’s competency to report events capable of lay observation; however, the Board offers no findings as to his credibility at this time. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The matter is REMANDED for the following action: Obtain an addendum opinion addressing the questions below.  If the reviewing examiner determines that the opinions requested may not be offered without first examining the Veteran, then consider whether a telehealth interview may be appropriate.  Schedule an in-person examination only if deemed necessary to answer the questions below.  The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred.  In particular, the examiner is to: (1) Clearly identify ALL skin disorders demonstrated by the Veteran during the pendency of this appeal (stemming from a June 2014 claim). The examiner should clearly indicate whether any of these disorders constitute a form of chloracne. (2) For EACH diagnosed skin disorder, respond to the following: (a.) Is it clear and unmistakable (obvious and manifest) that this disorder existed prior to active duty? Here, the examiner must address a July 2009 private opinion reporting cumulative skin damage from the Veteran’s childhood. (i.) If so, opine whether it is clear and unmistakable (obvious and manifest) that the disorder was not aggravated by a subsequent period of service? In other words, is it clear and unmistakable that any worsening of the disability was due to the natural progression of the disability? (ii.) If not, opine whether it is at least as likely as not (50 percent probability or more) that the condition began during a period of active duty service, was caused by service, or is otherwise related to service, including in-service herbicide exposure and a severe in-service sunburn. In completing the above, the examiner must address July 2009 and January 2014 positive opinions from private providers; December 2014 and November 2020 VA opinions; and lay testimony regarding the Veteran’s history of sun and herbicide exposures. In formulating the opinion, the examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.