Citation Nr: 21021855 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 12-16 668A DATE: April 14, 2021 REMANDED Service connection for a skin disability, to include malignant melanoma, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1965 to May 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The issues of service connection for infertility and a skin disability were denied in December 2019. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Joint Motion for Partial Remand (JMPR), the parties agreed to remand and vacate the portion of the Board’s December 2019 decision that denied entitlement to service connection for a skin disability and to dismiss the Veteran’s claim for service connection for infertility. The Court, in a November 2020 order, granted the JMPR, vacating the claim for service connection for a skin disability portion of the Board’s decision and remanding the matter to the Board for further development consistent with the terms of the JMPR. Thus, the infertility issue has already been denied by the December 2019 Board decision and will no longer be addressed here. Service connection for a skin disability, to include malignant melanoma, is remanded. The parties to the JMPR found that the May 2019 skin examination of record was inadequate and, therefore, a remand was necessary to obtain a new opinion. A medical examination “is adequate where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994)) In May 2019, an opinion was obtained regarding whether the Veteran’s skin disability was related to his service. The examiner opined that the Veteran’s malignant melanoma was less likely than not related to Agent Orange because, per the Institute of Medicine (IOM), malignant melanoma “has not been identified as an Agent Orange related illness” and the “va.gov website listing the presumptive Agent Orange related illnesses” does not include melanoma. The examiner also stated, “Additionally, the [service treatment records] were silent for references possibly pertaining to... malignant melanoma/suspicious skin lesions” and that he “was unable to identify any causative relationships between Agent Orange/Dioxin exposure and Malignant Melanoma.” In September 2019, an addendum opinion was obtained, and the examiner again opined the skin condition was less likely than not related to service. The examiner again stated, “Per the current parameters established by the [IOM] as to presumptive Agent Orange related illnesses, his skin condition, characterized by Malignant Melanoma[,] has not been identified as an Agent Orange related illness.” The examiner again noted the melanoma was not listed on the va.gov website as a presumptive condition related to Agent Orange exposure. The examiner also stated that the service treatment records were silent for references possibly pertaining to malignant melanoma or suspicious skin legions. A remand is warranted to obtain a new VA opinion regarding whether the Veteran’s skin disability is directly related to Agent Orange exposure. The May and September 2019 VA examiner’s opinion was based on the fact that VA and the IOM does not recognize multiple melanoma as a disease subject to presumptive service-connection based on Agent Orange exposure. Yet the fact that service connection is not available on a presumptive basis does not preclude a veteran from establishing service connection with proof of actual or direct causation. Combee v. Brown, 34 F.3d 1039, 1042-44 (Fed. Cir. 1994). That is, an examiner is required to consider whether the Veteran’s skin condition could be related to his exposure to Agent Orange in light of the Veteran’s specific circumstances of service, medical history, and other risk factors. See generally Polovick v. Shinseki, 23 Vet. App. 48 (2009). A new VA examination is, therefore, necessary, to adequately consider direct service connection. The matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA skin examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to: a) Whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s skin disability, to include malignant melanoma had its onset in, or is otherwise attributable to, the Veteran’s period of active service. b) Whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s skin disability, to include malignant melanoma is otherwise attributable to the Veteran’s inservice exposure to Agent Orange. In so doing, the examiner should obtain a detailed history from the Veteran regarding his condition. The examiner is advised the Veteran’s Agent Orange exposure is presumed and a negative opinion merely based on the fact that his condition is not a presumptive condition associated with Agent Orange herbicide will be deemed insufficient for adjudication purposes. Polovick, 23 Vet. App. 48. Rather, the examiner must address the Veteran’s specific medical and military history in rendering the opinion. (Continued on the next page)   A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.