Citation Nr: 21014930 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 12-21 365A DATE: March 16, 2021 ORDER Service connection for multiple myeloma (also claimed as Hodgkin’s disease) is denied. As new and material evidence has been received to reopen the claim of service connection for skin cancer, the appeal to this extent is allowed. REMANDED Entitlement to service connection for skin neoplasms (also claimed as skin rash) is remanded. Entitlement to service connection for skin cancer is remanded.   FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran had multiple myeloma during his lifetime. 2. Evidence submitted after a final June 2006 rating decision is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for skin cancer, to include as due to exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for multiple myeloma have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for skin cancer has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from March 1968 to January 1970, to include service in the Republic of Vietnam. Unfortunately, in April 218, which was during the pendency of this appeal, the Veteran died. His surviving spouse has been substituted in the pending appeal as the appellant. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2009 and May 2013 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). “Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability. In the absence of a proof of present disability there can be no claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (internal citation omitted). The requirement of a “current disability” is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The standard is whether a disability exists at the time the claim was filed. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). 1. Entitlement to service connection for multiple myeloma (also claimed as Hodgkin’s disease). The Veteran during his lifetime perfected an appeal for the issue of service connection for multiple myeloma, to include as due to his exposure to herbicide agents during his service in the Republic of Vietnam. The evidence shows that the Veteran was not diagnosed with multiple myeloma during his lifetime. The Board has thoroughly reviewed the claims file, but has found no evidence indicating a diagnosis of myeloma. In fact, the Veteran himself wrote in his April 2016 VA Form 9 that his representative had mistakenly entered “malanoma” cancer, whereas his claim “should have been squamous cell carcinoma/basil-cell carcinoma.” The Veteran’s statement shows that he did not intend to claim service connection for multiple myeloma. Rather, he was seeking service connection for a skin cancer. As there is no current diagnosis, the preponderance of the evidence is against the claim, and the appeal is denied. New and Material Evidence Where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, raise a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans, 9 Vet. App. at 283; see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it would not be enough to convince the Board to grant the claim). The credibility of the newly submitted evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510 (1992). 2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for skin cancer has been submitted. The Veteran’s claim for service connection for skin cancer was initially denied in a June 2006 rating decision. The AOJ determined that there was there no evidence showing that the Veteran’s condition occurred in or was caused by service. The Veteran did not appeal this decision. He submitted new evidence in April 2007, but it was relevant to an unrelated claim and not skin cancer. The June 2006 decision thereby became final. The Veteran filed a petition to reopen the claim in October 2008. The RO sent him notice in January 2009 that it could not locate his claim, so he re-filed the claim in March 2009. The AOJ issued the instant December 2009 rating decision denying the petition to reopen and indicating that new and material evidence had not been received. Subsequent to the June 2006 rating decision, new and material evidence has been received that relates to unestablished facts that are necessary to substantiate the Veteran’s claim for service connection for skin cancer, to include treatment records and lay statements from the Veteran relating to in-service events, onset of his skin cancer condition, and a potential link between his experiences during service and his current disability. This evidence satisfies the low threshold requirement for new and material evidence and the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010).   REASONS FOR REMAND 1. Entitlement to service connection for skin cancer is remanded. 2. Entitlement to service connection for skin neoplasms (also claimed as skin rash) and entitlement to service connection for skin cancer is remanded. The appellant contends that the Veteran had a skin condition during his lifetime, to include neoplasms (claimed as skin rash) and skin cancers, related to his active duty service, to include exposure to herbicide agents during his service in the Republic of Vietnam or sun exposure. A review of the claims file confirms the Veteran was diagnosed with various skin conditions, including basal cell carcinoma, squamous cell carcinoma, rosacea, dermatitis, and actinic keratosis lesions. See e.g., June 2002 private treatment record; July 2009 private treatment record; November 2017 VA dermatology clinic notes. The Veteran submitted a statement from one of his treatment providers dated August 2005 providing that that the Veteran had a history of skin cancers and was exposed to Agent Orange. Further, in a November 2013 statement from the Veteran, the Veteran provided details about his experience during service, including his circumstances of potential exposure to herbicide agents. The Veteran also stated that “[o]ne dermatologist asked me if I worked with cotton poison or in cotton fields, or on a chemical plant with harsh chemicals” and the dermatologist indicated “the reason he asked was because the [skin] cancers looked like what he would normally see in patients who have been exposed to harsh chemicals or extreme sun exposure.” The Veteran further asserted in his statement that the only time he experienced extreme sun exposure was during his service in the Republic of Vietnam. See November 2013 statement. Prior to his death, the Veteran was not been afforded a VA examination with respect to these claims. A remand is necessary to obtain an opinion regarding the etiology of the Veteran’s skin disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician regarding the nature and etiology of any diagnosed skin condition. The examiner must review the record in its entirety and provide the following opinions: (a.) Is it at least as likely as not that a skin condition diagnosed during the Veteran’s lifetime was related to an in-service injury, event, or disease, to include the confirmed exposure to herbicide agents (Agent Orange) and/or sun exposure in service? In answering this question, the examiner is asked to disregard whether the disorder is one for which a “presumption” is established and, instead, to answer whether the medical condition is a result of Agent Orange exposure even though it is not on the list of “presumptive” diseases. The examiner is asked to consider all statements from the Veteran (during his lifetime). The examiner is asked to explain why his statements make it more or less likely that a skin condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.