Citation Nr: A21019691 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 210106-127840 DATE: December 10, 2021 ORDER As the Veteran submitted new and relevant evidence in support of a supplemental claim for service connection for a left axillary lymph node dissection, readjudication of the claim is warranted. Entitlement to service connection for malignant neoplasms, including skin cancer and residuals thereof (e.g. left axillary lymph node dissection and scarring) is granted. FINDINGS OF FACT 1. When the Veteran filed his July 2020 supplemental claim, he submitted evidence not previously of record that tends to prove or disprove a matter at issue in a March 2020 rating decision, which previously denied his claim for service connection for a left axillary lymph node dissection. 2. The evidence in the record shows that the Veteran's malignant neoplasms, including skin cancer and residuals thereof (e.g. a left axillary lymph node dissection and scarring) were caused by his exposure to herbicides during his military service. CONCLUSIONS OF LAW 1. The evidence the Veteran submitted with his July 2020 supplemental claim is new and relevant evidence pertaining to the claim for service connection for the left axillary lymph node dissection and residuals thereof, and the criteria for readjudication of the claim are met. 38 C.F.R. §§ 3.156, 3.2501. 2. The criteria for service connection for malignant neoplasms, including skin cancer and residuals thereof (e.g. left axillary lymph node dissection and scarring) are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Navy from February 1967 to October 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2020 rating decision from the Veterans Benefits Administration (VBA) in the modernized review system. See 38 C.F.R. § 3.2400. In a March 2014 rating decision in the legacy appeals system, VBA denied the Veteran's claims for service connection for a malignant neoplasm and skin cancer. While VBA notified the Veteran of that decision in April 2014, the Veteran did not initiate an appeal by filing a notice of disagreement. Moreover, the United States Department of Veterans Affairs (VA) did not receive new and material evidence within one year of the notice of that rating decision. Therefore, VA's decision on the matters became final according to the rules applicable to the legacy appeals system. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. In a September 2020 rating decision, VBA implicitly found the Veteran's additional evidence submitted with a July 2020 supplemental claim to be new and relevant for the purpose of reconsidering the malignant neoplasm and skin cancer claims under 38 C.F.R. §§ 3.156, 3.2501 according to the current rules in the modernized review system. However, it denied the Veteran's claims for service connection for skin cancer (e.g. melanoma) and a malignant neoplasm because it found there was insufficient evidence of a link between a current disability and in-service events. A March 2020 rating decision in the modernized appeals system previously denied the Veteran's claim for entitlement to service connection for a left axillary lymph node dissection. VBA found the evidence did not support a finding that there was a current diagnosed disability associated with the Veteran's service, to include his exposure to herbicides. In the September 2020 rating decision, VBA denied the Veteran's supplemental claim for reconsideration of the claim for service connection for a left axillary lymph node dissection. It found the additional evidence submitted by the Veteran in support of the claim was not new and relevant evidence pertaining to the left axillary lymph node dissection. VA received the Veteran's timely January 2021 notice of disagreement with the September 2020 rating decision including all issues adjudicated therein. The Veteran elected the Direct Review by a Veterans Law Judge Option. Therefore, the Board will consider the claims based on the evidence of record at the time of the September 2020 rating decision. See 38 C.F.R. §§ 20.202, 20.301. Regarding the left axillary lymph node dissection, the Veteran's private treatment records indicate the dissection was performed to treat the Veteran's melanoma, which is a skin cancer, a form of malignant neoplasm. See, e.g. January 2020 treatment records from Sutter Health (noting the left axilla sentinel lymph node biopsy revealed micrometastatic disease). While VBA characterized the Veteran's skin cancer, malignant neoplasm, and lymph node dissection claims as three distinct issues, the Board has recharacterized the appeal as a single issue to better reflect the disability picture on appeal and avoid confusion. The Board also finds the Veteran submitted new evidence with his July 2020 supplemental claim, which tends to prove or disprove a matter at issue in the previously claim for service connection for left axillary lymph node dissection. This evidence includes a July 2020 statement from an oncologist, which indicates the Veteran's skin cancer and residuals thereof are possibly linked to his exposure to herbicides (e.g. Agent Orange). It also includes a series of articles discussing the prevalence of skin cancer among veterans. The Board finds this evidence tends to prove that the Veteran's left axillary lymph node dissection is ultimately the result of his herbicide exposure and resulting skin cancer. Therefore, the Board finds this new evidence is relevant evidence pertaining to the claim for service connection for the left axillary lymph node dissection and residuals thereof. 38 C.F.R. §§ 3.156, 3.2501. Accordingly, the Board will readjudicate the claim for service connection for the left axillary lymph node dissection and residuals thereof. Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Board observes that the VA has found the Veteran was exposed to herbicides and that his prostate cancer and residuals thereof are related to such exposure. See March 2011 rating decision. The Board finds no compelling evidence contrary to VBA's finding that the Veteran was exposed to herbicides during his military service. Additionally, a September 2020 VA skin examination confirmed the Veteran suffers from residuals of melanoma including the left axillary lymph node dissection and associated scarring. Moreover, the examiner indicated that the Veteran's disabilities on appeal were more likely than not related to his exposure to herbicides. The examiner found that supporting medical literature shows that agent orange is linked to skin cancer risk, which includes melanoma. The Board finds no compelling medical opinion evidence to the contrary in the record and finds no cause to order additional development of the evidentiary record. Therefore, the Board grants the Veteran's claims. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.