Citation Nr: 21075914 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 20-09 604 DATE: December 21, 2021 REMANDED Entitlement to service connection for melanoma, squamous cell carcinoma, and basal cell carcinoma (skin cancer), to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1948 to January 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for carcinoma (skin) and melanoma. After additional evidence was received, in September 2017 the RO issued a rating decision continuing the denial because the evidence was not new and material. 38 C.F.R. § 3.156(b). In May 2018 the Veteran filed a notice of disagreement (NOD) and in February 2020 the RO issued a statement of the case (SOC). In March 2020 the Veteran timely filed a substantive appeal (via VA Form 9). In September 2021 the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. Service connection Service connection will be granted on a direct basis if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Entitlement to service connection for skin cancer is remanded. A December 2003 private physician diagnosed the Veteran with melanoma. In March 2016 the Veteran was diagnosed with squamous cell carcinoma. In January 2017 the Veteran was diagnosed with basal cell carcinoma. Thus, a current disability has been demonstrated. In the August 2018 Statement in Support of Claim (VA Form 21-4138) the Veteran stated that his skin cancer is most likely related to his exposure to Agent Orange. The Veteran's military personnel records confirm he served in Vietnam and is presumed to have been exposed to herbicide agents. Thus, the in-service injury or disease element is met. VA laws and regulations provide that, if a Veteran was exposed to herbicide agents (Agent Orange) during service, certain listed diseases are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who served in Vietnam is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's skin cancer is not among the listed disabilities under 38 U.S.C. § 3.309(e) and the presumption afforded under these provisions cannot provide a basis for a grant of service connection in this case. Nevertheless, consideration of whether a grant of service connection on a direct basis is still necessary in this case. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis). As there is evidence of current disability that may be associated with service, and the Veteran has not been provided a medical examination or opinion, a remand for such an examination or opinion is warranted. The opinion should not be based on the absence of skin cancer from the list of diseases presumed service-connected in veterans exposed to herbicide agents. Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) ("To [deny] service connection... on the basis that it is not likely there is any nexus to service solely because the statistical analysis . . . does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection"). The factors to be considered include whether a medical professional finds studies persuasive, whether there are risk factors personal to the veteran that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner. Id. at 53. The matters are REMANDED for the following action: Request an opinion from an appropriate physician regarding the etiology of the Veteran's skin cancer and related symptoms. If an examination is required, one should be conducted, to include via telehealth if appropriate. The physician must provide an opinion on whether it is at least as likely as not (a 50 percent probability or greater), that the Veteran's skin cancer is related to or had its onset in military service including in-service exposure to herbicide agents (Agent Orange). The physician is advised that the Veteran is competent to report symptoms and treatment and that his reports must be considered in formulating the requested opinion. The fact that skin cancer is not on the list of diseases presumed service-connected in veterans exposed to herbicide agents should not be a basis for a negative opinion, as the Veteran may still establish such a relationship on a direct basis. The factors to be considered include the persuasiveness of medical studies, whether there are risk factors personal to the veteran that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.