Citation Nr: 21064885 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 19-05 971A DATE: October 21, 2021 ORDER As new and material evidence has been received, the claim of entitlement to service connection for skin cancer with residual scarring is reopened. REMANDED Entitlement to service connection for connection for a skin disability, to include melanoma, basal cell carcinoma, and squamous cell carcinoma, is remanded. FINDINGS OF FACT 1. A June 2016 rating decision denied service connection for skin cancer with residual scarring. The Veteran did not submit a timely notice of disagreement and the June 2016 rating decision is final. 2. The additional evidence received since the June 2016 rating decision is new and material. CONCLUSIONS OF LAW 1. The June 2016 rating decision that denied service connection for skin cancer with residual scarring is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claim for service connection for skin cancer with residual scarring has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1970 to December 1971. He served in the Republic of Vietnam. The Veteran had additional duty with the Army Reserve National Guard. Application to Reopen Service Connection for Skin Cancer Residuals Generally, absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the initial review and determination of an appellant's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing 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. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In regards to pending legacy claims not under the modernized review system, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans' Appeals (Board) without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). A June 2016 rating decision denied service connection for skin cancer with residual scarring "since this condition neither occurred in nor was caused by service." The Veteran was informed in writing of the adverse decision and his appellate rights. He did not submit a notice of disagreement. The evidence considered by the Agency of Original Jurisdiction in reaching the June 2016 rating denying service connection for skin cancer included the service treatment records, service personnel records, Department of Veterans Affairs (VA) examination and clinical documentation, and written statements from the Veteran. The service treatment records do not refer to skin cancer. The service personnel records state that the Veteran served in the Republic of Vietnam. A February 2015 VA treatment record indicates that the Veteran had several melanomas removed. The report of a May 2012 VA skin examination conveys that the Veteran was diagnosed with melanoma in July 2006 and basal cell carcinoma in March 2016. The Veteran was diagnosed with "melanoma in situ." The examiner concluded that "it is the opinion of this medical examiner that he does have a scar and does have past melanoma/skin cancer (residual with scar) that is less likely (less than 50% probability) incurred in or caused by (the) during service." The VA physician commented that "he is a Vietnam veteran specifically was a helicopter pilot, who was reasonably exposed to Agent Orange etc." and "however, there was no appreciation of competent medical evidence on review of his medical records to support that his skin cancer/residual scar incurred in or caused by (the) during service." New and material evidence pertaining to the issue of entitlement to service connection for skin cancer with residual scarring was not received by VA or constructively in VA possession within one year of written notice to the Veteran of the June 2016 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional evidence received since the June 2016 rating decision includes VA clinical documentation, private clinical documentation, and written statements from the Veteran. An April 2014 written statement from S. Dixon, M.D, states that he had treated the Veteran since 2002 for a "variety of skin disorders including a melanoma in situ on his right upper back in 2005, as well as 2 basal cell carcinomas and 3 squamous cell carcinomas." In his March 2019 Appeal to the Board, VA Form 9, the Veteran related that: "while serving in Vietnam, I went shirtless many times as most servicemen did;" "I became severely sunburned more times than I would like to think;" and "my dermatologist has told me that once the skin is damaged, a cancer can appear any time in the future." The Board finds that the Dr. Dixon's April 2014 written statement and the March 2019 substantive appeal to be of such significance that they raise a reasonable possibility of substantiating the claim for service connection for skin cancer with residual scarring when considered with the evidence previously of record. The documentation addresses the reason of the previous denial as it shows that multiple skin cancers may have originated during active service as the result of the Veteran's tropical sun exposure in the Republic of Vietnam. As new and material evidence has been received, the claim of entitlement to service connection for skin cancer with residual scarring is reopened. The issue of entitlement to service connection for a skin disability, to include melanoma, basal cell carcinoma, and squamous cell carcinoma, will be addressed below in the Remand below. REASONS FOR REMAND Entitlement to service connection for connection for a skin disability, to include melanoma, basal cell carcinoma, and squamous cell carcinoma, is remanded. The Veteran asserts that service connection for a skin disability is warranted as he has developed melanoma, basal cell carcinoma, and squamous cell carcinoma as the result of his tropical sun exposure while in the Republic of Vietnam. The service personnel records reflect that the Veteran served in the Republic of Vietnam. Therefore, his tropical sun exposure is conceded. The Veteran has not been afforded a VA skin examination which addresses the relationship between the diagnosed melanoma, basal carcinoma, and squamous cell carcinoma and the Veteran's tropical sun exposure. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Clinical documentation dated after June 2019 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for any skin disability. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain any VA treatment records not of record, to include any pertaining to treatment after June 2019. 3. Schedule the Veteran for a VA skin examination conducted by a medical doctor to assist in determining the nature and etiology of any identified skin disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all skin disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified skin disability, to include melanoma, basal cell carcinoma, and squamous cell carcinoma had its onset during active service or is related to any incident of service, including the Veteran's conceded tropical sun exposure and presumed herbicide agent while in the Republic of Vietnam. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.