Citation Nr: A21020535 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 210713-172746 DATE: December 27, 2021 ORDER Entitlement to service connection for skin conditions, to include skin lesions and skin cancers, is granted. FINDING OF FACT The preponderance of the evidence establishes that skin conditions, to include skin lesions and skin cancers, are attributable to service. CONCLUSION OF LAW The criteria for entitlement to service connection for skin conditions, to include skin lesions and skin cancers, have been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1964 to February 1968, to include service on the landmass and in the territorial sea of the Republic of Vietnam (Vietnam). These matters come before the Board of Veterans' Appeals (Board) on his appeal of a June 2021 rating decision of a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ) that denied readjudication of the Veteran's claim for service connection for skin cancer. The history of the Veteran's litigation goes back to June 2003, when he filed various claims for service connection, to include a claim seeking for service connection for a condition that back then he defined as a skin rash and based on his presumptive exposure to tactical herbicides during his service in Vietnam. In September 2003, the AOJ denied this claim upon conceding that the Veteran's service included missions on the landmass of and in the territorial sea of Vietnam but pointing out that no medical records showed that he experienced a skin rash during the period on appeal. In January 2004, the Veteran requested "reopening" of his claim. In March 2004, the AOJ issued a decision declining "reopening" on grounds identical to those stated in the September 2003 decision. The September 2003 decision had not become final by the time the Veteran filed his January 2004 request to "reopen." The RO incorrectly addressed the issue as new and material. However, this oversight is immaterial for the purposes of the analysis at hand since the Veteran's next request for reopening of his claim was filed in March 2007, i.e., two years after the AOJ's March 2004 rating decision became final in March 2005. Thus, the Veteran's March 2007 application was correctly framed as seeking a reopening. In December 2007, the AOJ denied the Veteran's request for reopening upon implicitly conceding that he had been treated for a skin rash but finding that his claim did not warrant an award of service connection because the Veteran's service treatment records (STRs) did not contain entries of complaints of or treatment for a skin rash. The AOJ's December 2007 decision did not reach the causation element. Almost four years passed by. In October 2011, the Veteran once again requested reopening of his claim for service connection for skin conditions, this time characterizing his skin conditions as skin cancers based on his diagnoses of and treatments for skin cancers. Nevertheless, in January 2014, the AOJ again denied reopening of the Veteran's claim. Detailing the basis for its January 2014 decision, the AOJ stated that the Veteran's evidence of experiencing skin cancers was neither new nor material because the Veteran's STRs were silent as to an in service event that could be deemed causally related to his skin cancers. Simply put, the AOJ found, once again, that the Veteran met the present-disability element but failed to establish the in-service-event element of his claim. And, once again, the AOJ did not reach the causation element. In December 2014, the Veteran filed a Notice of Disagreement. In April of 2018, a Veterans Law Judge (VLJ) other than the undersigned held a videoconference Board hearing. A transcript of the hearing has been associated with the claims file. In August 2018, the VLJ issued a decision directing reopening of the Veteran's claim for service connection for skin cancer and remanded the claim for a VA examination. Such an examination was conducted in October 2018. In March 2020, the AOJ issued a Statement of the Case, and the Veteran requested a higher-level review decision. In August 2020, the AOJ issued such a higher review decision. First, the AOJ rendered a favorable finding as to the in-service event element upon applying the presumption that the Veteran was exposed to tactical herbicides due to his service on the landmass of and in the territorial sea of Vietnam. Notably, the Board is bound by this favorable finding since this finding is not contradicted by clear and convincing evidence of record. In addition, the August 2020 AOJ decision acknowledged, once again, that the Veteran's treatment records verified his diagnoses of and treatments for skin cancers, i.e., squamous-cell and basal-cell carcinomas. However, pointing at the fact that squamous-cell and basal-cell carcinomas were not among conditions warranting a presumptive causal connection, the AOJ denied the Veteran's claim once again. That said, the AOJ's August 2020 decision acknowledged that the Veteran could establish the nexus element on a direct basis. Thus, the AOJ relied on the opinion rendered by an October 2018 VA examiner who concluded that it was less likely than not that the Veteran's skin cancer was attributable to service. In June 2021, the Veteran once again requested a "reopening" of his claim (even though the AOJ's August 2020 decision has not become final and was issued after the effective date of the Appeal Modernization Act that substituted the process of reopening based on new and material evidence with the process of readjudication based on new and relevant evidence, i.e., a standard more lenient than that of new and material evidence). The Veteran accompanied his June 2021 application with a May 2021 medical opinion rendered by Dr. S.L., a private medical practitioner. In June 2021, the AOJ adopted the Veteran's framing of his June 2021 application as that for "reopening," albeit without using the word "reopening" and oddly enough utilizing the legal standard applicable to the "readjudication" process. In other words, without a basis in law or facts, the AOJ treated the Veteran's claim as if it was either never reopened by the Board's August 2018 decision or as if the August 2020 decision issued by the AOJ became final by the time when the Veteran filed his June 2021 application. Therefore, the AOJ denied readjudication of the Veteran's claim upon concluding that Dr. S.L.'s opinion did not amount to new and relevant evidence. Moreover, the AOJ did so without a clarification as to why Dr. S.L.'s opinion was insufficient to warrant a readjudication. Instead, the AOJ reiterated its August 2020 finding that the Veteran's skin cancers were not among medical conditions that warranted a presumptive causal connection, and omitted to conduct any direct causal connection analysis. In July 2021, the Veteran filed his VA Form 10182 at bar. At the onset of its analysis, the Board notes that even though the AOJ treated this matter as if there were a final AOJ's decision of record entered after the Board's August 2018 reopening of the Veteran's claim, no AOJ's decision following the Board's reopening of the Veteran's claim has become final. Therefore, the Board is now presented with a somewhat puzzling situation where the Board reopened the claim in August 2018, but the AOJ kept treating it as if it had not been reopened. For this reason, the Board solely out of an abundance of caution finds it warranted to address the issue of readjudication of this claim, given that, if the claim is not expressly reopened, the Board is barred from entering a decision on the merits. Thus, the Board observes that new evidence means evidence not previously part of the record, and relevant evidence means information that tends to prove or disprove a matter at issue in a claim. 38 C.F.R. § 3.2501(a)(1). Since, here, the October 2018 VA examiner's opinion and the May 2021 opinion rendered by Dr. S.L. qualify as new and relevant evidence, the Veteran's request for readjudication of his claim for service connection for his skin condition should be granted. That said, while the Board makes this observation to reach the merits of the claim, the Board does not find it appropriate to enter an express order to granting the Veteran's request for "reopening," which technically is a request for a readjudication: since his claim had already been reopened by the Board in August 2018, and the Board cannot reopen an already-reopened claim, even if the Board were to draw a distinction between "reopening" and "readjudication." Having sorted out this procedural peculiarity, the Board now turns to the merits. In terms of positive lay statement evidence, the record contains the opinion of the Veteran's former spouse, D.H.B., who stated that, having met the Veteran in 1968, i.e., shortly after his return from Vietnam and discharge, she had observed his skin rash that remained recurring on a regular basis throughout their marriage and after their divorce (since D.H.B.'s lay statement demonstrates that she stayed in close contact with the Veteran after their divorce). The opinion rendered by the October 2018 VA examiner analogously reflected the Veteran's report of having skin lesions since his discharge. The VA examiner also confirmed the presence of "multiple skin cancer lesions [on the Veteran's] face, scalp, trunk, and arms" and history of his skin-cancer diagnoses and surgeries since 2006. The VA examiner, however, found that the Veteran's skin cancers were less likely than not related to service. Stating the rationale for such an opinion, the VA examiner opined that D.H.B.'s statement was the sole evidence of the Veteran's skin cancers prior to 2006. For reasons not immediately apparent to the Board, the VA examiner failed to recognize that the Veteran's very report to the VA examiner qualified lay evidence consistent with D.H.B.'s statement. Moreover, the Board finds the VA examiner's opinion facially inadequate because D.H.B.'s statement neither purported to diagnose the Veteran's skin rash (that she had observed since 1968) as skin cancers nor strived to specify the point in time when his skin rash transformed into skin cancers. Rather, D.H.B., carefully limited her statements to her observations of the Veteran's skin rash, which she was competent to report. Further, the Veteran's November 2008 medical treatment records reflect his report to the Veteran's treating medical practitioner about the Veteran's long history of "[r]ecurrent papular skin lesions on trunk, upper extremities." Given that the October 2018 VA examiner failed to review the claims file with a degree of thoroughness needed to appreciate the finesse of D.H.B.'s statement and its consistency with the Veteran's November 2008 report to his treating medical practitioner, and the VA examiner did not reflect on the Veteran's report made during the VA examination that the examiner conducted, the Board qualifies the VA examiner's opinion as not probative for failure to address the evidence of record. In contrast, the Board finds D.H.B.'s lay statement competent, credible, and highly probative. Moreover, the opinion rendered by Dr. S.L. is also competent, credible, and highly probative. Specifically, Dr. S.L. focused on: (a) the abnormal multitude and frequency of the Veteran's cancerous lesions; and (b) Dr. S.L.'s professional experience with treatment of analogously abnormal, that is, in terms of multitude and frequency, skin lesions of other patients who had been exposed to tactical herbicides. Since Dr. S.L.'s opinion is very specific, rather than set forth in terms of academic generalities, and is based on the Veteran's unique medical record, and Dr. S.L.'s experience with the symptoms that he attributed to exposure to tactical herbicides, the Board finds that the preponderance of the evidence supports a finding that the Veteran's skin conditions, to include skin cancers, are more likely than not attributable to service. Accordingly, the Veteran's claim is granted. In conclusion, the Board takes this opportunity to thank the Veteran for his service. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anna Kapellan, 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.