Citation Nr: 21024548 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 20-03 319 DATE: April 23, 2021 ORDER New and material evidence having been received, the reopening of the claim of entitlement to service connection for Merkel cell carcinoma is granted. REMANDED Entitlement to service connection for Merkel cell carcinoma is remanded. Entitlement to service connection for a neck disability, to include neck scars, as secondary to Merkel cell carcinoma, is remanded. Entitlement to a disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. A May 2010 rating decision denied service connection for Merkel cell carcinoma; the Veteran and his representative were properly notified, and no response or additional evidence was received within one year of the notice. 2. The evidence received since the May 2010 rating decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for Merkel cell carcinoma. CONCLUSION OF LAW The criteria for reopening the claim of entitlement to service connection for Merkel cell carcinoma are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1956 to December 1957, February 1958 to February 1962, and February 1966 to June 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing when he filed his appeal with the Board, but in December 2020, the Veteran’s representative submitted a written request to withdraw the request for a hearing. The Board finds that there is no evidence that the Veteran did not consent to the withdrawal of the hearing request, and therefore the request for a hearing with withdrawn. See 38 C.F.R. § 20.603. New and material evidence having been received, the reopening of the claim of entitlement to service connection for Merkel cell carcinoma is granted. In a May 2010 rating decision, the RO denied service connection for Merkel cell carcinoma. The Veteran was notified of the May 2010 rating decision and his procedural and appellate rights in May 2010 at his address of record. His representative was copied on the notice. He did not file a notice of disagreement within one year of notice of the May 2010 rating decision. No additional evidence was received within one year of notice of the May 2010 rating decision. For this reason, the May 2010 rating decision denial of service connection for Merkel cell carcinoma became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Additional evidence was added to the claims file and the Veteran filed a claim to reopen the issue of entitlement to service connection for Merkel cell carcinoma in November 2014. In April 2015, the RO issued a decision denying the reopening of the claim as the evidence received was not new and material. The Veteran filed a notice of disagreement with that decision and in April 2017 the RO issued a Statement of the Case denying the reopening of the Veteran’s claim because the evidence received was not new and material. The Veteran did not perfect an appeal of this decision to the Board, so the decision became final. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. Evidence received since the prior final decision includes a September 2017 letter from the Veteran’s doctor stating that the Veteran’s Merkel cell carcinoma is a rare tumor of the skin and, since soft tissue sarcomas are recognized as being associate with exposure to herbicide agents, the claim deserves critical consideration, a March 2019 letter from another doctor stating that the Veteran’s Merkel cell carcinoma has been linked to sun exposure, an April 2019 letter from another doctor stating that the Veteran could have skin cancer related to his sun exposure during service, and a November 2019 VA examination. The August 2016 denial was on the basis that the Veteran was not exposed to herbicide agents during service. The affidavit and documents provided by the Veteran’s representative are new to the file, competent, address the grounds of the prior final denial, and raise a reasonable possibility of substantiating the service connection for depression claim. The Board concludes that the criteria for reopening service connection are met. 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for Merkel cell carcinoma is remanded. 2. Entitlement to service connection for a neck disability, to include neck scars, as secondary to Merkel cell carcinoma, is remanded. The Veteran claims entitlement to Merkel Cell Carcinoma and the evidence of record has raised two theories of entitlement. The Veteran’s medical evidence of record, including a September 2017 letter from Dr. G.C., a March 2019 letter from Dr. J.G., and an April 2019 letter from Dr. A.H., indicate that the Veteran’s Merkel cell carcinoma may be related to exposure to herbicide agents or sun during service. The record reflects that the Veteran had service in the Republic of Vietnam from June 1963 to May 1964. There is no evidence to rebut the presumption of exposure to herbicide agents. Therefore, the Veteran is presumed to be exposed to herbicide agents during service. 38 C.F.R.§ 3.307(a)(6)(iii). The Veteran underwent a VA Examination in October 2019. The October 2019 VA examiner indicated that there is “no substantial medical literature to support a greater than 50% probability” that the Veteran’s Merkel Cell Carcinoma was to due sun exposure. The October 2019 VA examiner did not opine as to whether the Veteran’s Merkel Cell Carcinoma was caused by the Veteran’s presumed exposure to herbicide agents. The Board finds the October 2019 VA examiner’s opinion to be inadequate because it imposed a standard that is higher than the equipoise standard that is required. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Thus, remand for a new examination is required. As the Veteran also claims entitlement to service connection for a neck disability, to include neck scars, due to his Merkel cell carcinoma, a remand is required for that issue since it is inextricably intertwined with the issue of entitlement to service connection for Merkel cell carcinoma. 3. Entitlement to a disability rating in excess of 50 percent for service-connected PTSD is remanded. The Veteran claims entitlement to a disability rating in excess of 50 percent for his service-connected PTSD. The Veteran last attended a VA examination in August 2017, over four years ago. The Veteran’s medical records, including records as recently as January 2019, show that the Veteran has reported increased PTSD symptoms to his health care providers. As there is an indication that the Veteran’s PTSD symptoms have increased in severity since the August 2017 VA examination, the Board finds it necessary to remand the claim for a contemporaneous examination to ensure that VA meets its duty to assist. 38 C.F.R. § 3.159 (c)(4)(i) (2019); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his Merkel cell carcinoma. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran’s Merkel cell carcinoma at least as likely as not related to service, including the Veteran’s claimed in-service sun exposure and his presumed exposure to herbicide agents? Provide a rationale to support the opinion(s). The VA examiner must address the September 2017 letter from Dr. G.C., March 2019 letter from Dr. J.G., and the April 2019 letter from Dr. A.H. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, 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.