Citation Nr: A21019282 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 210812-178108 DATE: December 3, 2021 REMANDED Service connection for squamous cell carcinoma is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Air Force from June 1960 to June 1964 and in the United States Army from September 1964 and September 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2020 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. In the August 2021 notice of disagreement (NOD) which commenced this appeal, the Veteran opted into the Evidence Review docket. Therefore, the Veteran does not desire a personal hearing before the Board, and the record on appeal includes evidence submitted within 90 days of the August 2021 NOD (August 12, 2021 to November 10, 2021) and evidence submitted before notification of the decision on appeal (August 14, 2020). The Board notes that in a May 2020 rating decision characterized the status of the Veteran's claim as finally decided and thus required new and relevant evidence in order to readjudicate the claim, and that such new and relevant evidence had not been received. Regardless, the August 2020 rating decision on appeal found that new and relevant evidence to readjudicate the claim had been received. The Board is bound by this favorable finding. Service connection for squamous cell carcinoma is remanded. At issue is whether the Veteran is entitled to service connection for squamous cell carcinoma. In the August 2020 rating decision on appeal, the RO made a number of favorable findings including: a current diagnosis of squamous cell carcinoma; and exposure to herbicide agents. Ultimately, the RO denied the Veteran's claim, because squamous cell carcinoma was not one of the conditions that could be granted service connection for herbicide agent exposure on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted, however, even for diseases that have not been listed as presumable linked to herbicide agent exposure if the Veteran demonstrates direct causation; i.e. medical evidence that a nexus exists between the claimed disease and an in-service herbicide agent exposure. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, the Veteran has a current diagnosis (conceded by the RO) and sustained an in-service incurrence (conceded by the RO) that is potentially linked to the current diagnosis. See Combee. This is sufficient to trigger VA's duty to assist, and, under these circumstances, VA is required to provide the Veteran with a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Unfortunately, the record is silent for such an examination, and, consequently, VA has failed to comply with its duty to assist the Veteran. Additionally, the Board cannot grant the Veteran's full prayer of relief at this time. Therefore, this matter must be remanded in order to provide the Veteran with a VA examination in order to address these issues. 38 C.F.R. § 20.802. The matters are REMANDED for the following action: Arrange to provide the Veteran with a VA examination in order to address the following question. Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence (to include herbicide agent exposure) and a current diagnosis of squamous cell carcinoma? The examiner should provide a rationale for any opinions rendered. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David R. Seaton, 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.