Citation Nr: 21072131 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-51 074 DATE: December 2, 2021 ORDER 1. Entitlement to service connection for skin cancer, to include basal cell carcinoma, squamous cell carcinoma and melanoma, as due to herbicide exposure, is granted. 2. Service connection for scars as residuals of treatment for skin cancer is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his skin cancer, to include basal cell carcinoma, squamous cell carcinoma and melanoma, is at least as likely as not related to herbicide exposure. 2. The Veteran has residual scars from treatment for his service-connected skin cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for skin cancer, to include basal cell carcinoma, squamous cell carcinoma and melanoma, as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for scars as residuals of treatment for skin cancer have been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1967 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 and June 2021, the Board remanded the issue of entitlement to service connection for melanoma for additional development. The Board notes that the Veteran initially filed a claim for melanoma. However, applicable law dictates that a claim for benefits should not be limited to a particular diagnosis on a claims form, but must instead be considered broadly to encompass the functional impairment arising from a particular disorder. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, the Board has recharacterized the issue on appeal as one of service connection for skin cancer, to include basal cell carcinoma, squamous cell carcinoma and melanoma, as due to herbicide exposure. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as malignant tumors (cancer). See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303 (b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes; Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Presumptive service connection for these disorders as a result of Agent Orange exposure is warranted if the requirements of Sec. 3.307(a)(6) are met. 38 C.F.R. § 3.309 (e). Most of these disabilities may be presumed to have been incurred during active military service as a result of exposure to an herbicide agent if it is manifest to a degree of 10 percent at any time after the last date on which the veteran was exposed to Agent Orange/herbicide agents during active service. 38 C.F.R. § 3.307 (a)(6)(ii). If the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also not satisfied, then the veteran's claim shall fail. 338 U.S.C. § 1113; 38 C.F.R. § 3.307 (d). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The Court has specifically held that the provisions of Combee are applicable in cases involving herbicide exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). 1. Entitlement to service connection for skin cancer The Veteran has asserted that service connection for his skin cancer is warranted on the basis of exposure to herbicide agents during service. The Board concedes that the evidence establishes that the Veteran served in Vietnam during the requisite period so that he is presumed to have been exposed to herbicide agents during service. Nevertheless the diagnoses of his skin cancers are not among the diseases specified at 38 C.F.R. § 3.309 (e); service connection on a presumptive basis is not warranted. The Veteran has a current skin cancer disability. Private treatment records reveal he was diagnosed with melanoma and basal cell carcinoma and squamous cell carcinoma. A November 2013 private treatment record confirms malignant melanoma of the left abdomen. An October 2014 private treatment record confirms squamous cell carcinoma of the left forearm. October 2010 and November 2011 private treatment records document basal cell carcinomas on the Veteran's head and face. Thus, the remaining question is whether the Veteran's skin cancer disability is related to service. In support of his claim, the Veteran provided a nexus opinion from a private physician. In March 2016, Dr. M. R. Madineedi found that it is more likely than not that the Veteran's skin cancers are due to herbicide exposure. The physician reviewed the Veteran's medical history and reviewed a study supporting a link between herbicide exposure and skin cancer. By way of rationale, he found that "[t]he exposure of 2,3,7,8-Tetrachlorodibenzodioxin appears to be associated with the development of non-melanotic invasive skin cancers." In February 2021 and August 2021, VA examiners expressed negative medical opinions that the Veteran's skin cancers were not related to service. The Board found the February 2021 VA examination to be inadequate as the examiner failed to consider the Veteran's claimed relationship between skin cancer and herbicide exposure, finding that melanoma is not recognized as a condition presumed to be due to herbicide exposure. The August 2021 VA examiner essentially restated the opinion of the February 2021 examiner with an additional finding that "agent orange has not been identified as a cause of melanoma", contrary to the findings of the private physician. The Veteran has a current diagnoses of skin cancer, the medical evidence is at least in equipoise that the Veteran's skin cancer is proximately due to his service, to include exposure to herbicides. Resolving all reasonable doubts in the Veteran's favor, service connection for the Veteran's skin cancers is warranted. 2. Scars as residuals of treatment for skin cancer. A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The VA examination reports of record confirm that the Veteran has residual scars resulting from his treatment for skin cancers. Service connection for the Veteran's skin cancer has been granted above. Accordingly, service connection for scars as residuals of treatment for skin cancer is granted. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.