Citation Nr: 21005353 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-29 846 DATE: February 1, 2021 REMANDED Entitlement to service connection for skin cancer is remanded. REASONS FOR REMAND The Veteran served in the United States Army from December 1967 to December 1969 and served in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2015 rating decision. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2020, and a transcript of this hearing has been associated with the claims file. Entitlement to service connection for skin cancer is remanded. The Veteran contends his skin cancer is due to either his Agent Orange exposure or his sun exposure during service. VA treatment records show the Veteran was diagnosed with skin cancer in January 2015. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, shall be service-connected if the requirements of § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Id. The evidence of record establishes that the Veteran served in Vietnam from May 1968 to May 1969, and he is therefore presumed to have been exposed to herbicide agents. However, skin cancer is not one of the diseases VA has determined to be presumptively caused by Agent Orange. 38 C.F.R. § 3.309(e). Although a veteran may not be entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Service treatment records do not show the Veteran as having been treated for sunburn or skin cancer during service. However, the Veteran has provided competent testimony addressing his sun exposure in Vietnam. During the March 2020 hearing the Veteran testified that while in Vietnam, he was sunburned “pretty good” a couple of times. The Veteran’s service personnel records reflect that he was an infantryman, which required him to spend time outside, including in the sun. As the Veteran is competent to observe having a sunburn and since the Veteran would have first-hand knowledge of whether or not he was sunburned during his time in Vietnam, the Board finds his statements in this regard to be both competent and credible. The Veteran has not received a VA examination for his skin cancer. The Board has considered whether it can remand to schedule an examination. When determining whether VA is required to provide a VA medical examination or a medical opinion, the following factors should be considered: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in-service, or evidence establishing certain chronic diseases were manifested during an applicable post-service presumptive period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The third factor has a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and a veteran’s service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, the Veteran has been diagnosed with skin cancer, and thus meets the first McLendon element. The Veteran has provided credible lay testimony about his sun exposure and sunburns during his service in Vietnam, and thus the second McLendon element is met. With respect to the third McLendon element, the Board finds that sun exposure and sunburns are sufficient evidence that indicates there may be an association between the Veteran’s skin cancer and his service. Thus, the Board finds that the third McLendon element has been met. Lastly, the Board requires additional evidence before it can make a determination as to whether the Veteran’s skin cancer is related to service. While the Veteran, as a layperson, is competent and credible to report on symptoms he has observed, he is not competent to provide a nexus opinion because these issues are medically complex and require specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4. However, the Veteran has raised a theory of entitlement for service connection, and the Board finds that a VA examination is warranted to address this theory. Accordingly, this matter is REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records from October 2020 to the present. 2. Schedule the Veteran for an examination with a qualified VA examiner. If it is determined that an in-person examination is not necessary, the examiner is free to schedule a telehealth examination.   The examiner is requested to provide an opinion as to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s skin cancer is due to his in-service sun exposure and/or sunburns? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s skin cancer is due to his presumed in-service exposure to herbicide agents? The examiner is to specifically address the Veteran’s lay statements about his sun exposure during service as an infantryman, as well as his contention that he received sunburns during service while in Vietnam. The examiner should note that although skin cancer is not a condition eligible for presumption under 38 C.F.R. § 3.309(e), the examiner must still address whether the Veteran’s skin cancer is due to exposure to Agent Orange on a direct service-connection basis. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could   not be given due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gabrielle Ongies, 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.