Citation Nr: 0028793 Decision Date: 10/31/00 Archive Date: 11/03/00 DOCKET NO. 98-12 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for skin cancer, to include on the basis of exposure to Agent Orange, and, if so, whether the reopened claim should be granted. 2. Entitlement to service connection for facial scars. REPRESENTATION Appellant represented by: Mark R. Lippman, attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Associate Counsel INTRODUCTION The veteran had active military service from August 1969 to July 1971. This matter came before the Board of Veterans' Appeals (Board) from a June 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This case was remanded by the Board in August 1999. In February 2000, the Board issued a decision which determined that new and material evidence had not been received to reopen the veteran's claim for service connection for skin cancer, to include on the basis of exposure to Agent Orange, and which denied the veteran's claim for service connection for facial scars and his claim for a compensable evaluation for scars of the left leg. The veteran appealed this decision, and in July 2000 the United States Court of Appeals for Veterans Claims (Court) granted a joint motion of the parties, and vacated the Board's February 2000 decision with respect to the determination that new and material evidence had not been presented to reopen a claim for service connection for skin cancer, to include on the basis of exposure to Agent Orange, and the denial of service connection for facial scars, and dismissed the appeal with respect to the issue of entitlement to a compensable rating for scars of the left leg. Thereafter, the case was returned to the Board. The Board notes that following the Board's February 2000 decision, additional evidence, consisting of a July 2000 statement by Eric L. Wyatt, M.D., was received in September 2000. Although a waiver of initial RO consideration was not provided by the veteran or his representative, as will be evident, the RO will have the opportunity to address the referenced evidence on remand. FINDINGS OF FACT 1. An unappealed rating decision of April 1994 denied the veteran's claim for service connection for skin cancer, to include on the basis of exposure to Agent Orange. 2. A subsequent rating decision of December 1996 continued the denial of service connection for skin cancer, to include on the basis of exposure to Agent Orange, and no appeal was taken therefrom. 3. The evidence added to the record since the December 1996 rating decision includes evidence which is not duplicative or cumulative of evidence previously of record and is so significant that it must be considered in order to fairly decide the merits of the claim. 4. The claims for service connection for skin cancer, to include on the basis of exposure to Agent Orange, and for facial scars are plausible. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the veteran's claim for service connection for skin cancer, to include on the basis of exposure to Agent Orange. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 2. The claims for service connection for skin cancer, to include on the basis of exposure to Agent Orange, and for facial scars are well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110 (West Supp. 2000); 38 C.F.R. § 3.303 (1999). Service incurrence or aggravation of a malignant tumor during wartime service may be presumed if manifested to a compensable degree within one year of the veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may be granted for any initially disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). I. New and material evidence Service connection for skin cancer, to include on the basis of exposure to Agent Orange, was denied in an unappealed April 1994 rating decision. A subsequent rating decision of December 1996 continued the denial of service connection for skin cancer, to include on the basis of exposure to Agent Orange, and no appeal was taken therefrom. Generally, a claim which has been denied in a final rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 1991). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, at 513 (1992). The evidence of record at the time of the December 1996 rating decision included service medical records which disclose that the veteran reported, at his induction examination, the removal of benign cysts from his right arm as a child. The service medical records are negative for any diagnosis, complaint, or abnormal finding pertaining to the skin, other than with respect to hemorrhoids and a fragment wound to the left leg. Evidence of record at the time of the December 1996 rating decision also included several statements of the veteran in which he alleged that he had developed basal cell carcinoma in several areas since 1975 as a result of exposure to Agent Orange, as well as the report of an August 1990 VA examination which shows that the veteran reported a history of recurrent basal cell carcinoma since 1975 affecting his face and back and that a diagnosis of recurrent basal cell carcinoma by history was made. Evidence added to the record since the December 1996 rating decision includes private treatment reports from Dr. Priscilla Swanson for May 1976 to December 1986, as well as the report of an April 1998 VA examination of the veteran. Dr. Swanson's treatment reports indicate that the veteran presented in 1976 with complaints of a three year history of an intermittent sore near his right eye; Dr. Swanson diagnosed the veteran with possible early basal cell epithelioma; treatment reports after 1976 document the removal of multiple lesions and basal cell carcinomas and indicate that the veteran had sunburn-damaged areas of skin. The April 1998 examination report records the veteran's contention that he experienced many blistering sunburns in Vietnam, but that he had not experienced severe sunburns at any other time. He informed the examiner that he began experiencing recurrent basal cell carcinomas in 1974. The veteran was diagnosed with numerous basal cell carcinomas by history, and the examiner opined that it was reasonable to conclude that extensive sun damage in young adulthood could lead to the development of basal cell carcinoma. The evidence previously of record notably contained no opinion linking the veteran's skin cancer to his period of service. As the April 1998 medical opinion suggests that the veteran's claimed sun damage in service could possibly have led to the development of basal cell carcinoma, the Board concludes that the evidence submitted since the December 1996 rating decision is new and material, and the veteran's claim is therefore reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). See also Hodge v. West, 155 F.3d 1356 (1998). II. Service connection As a preliminary matter, the Board must determine whether the veteran has submitted evidence of well-grounded claims. 38 U.S.C.A. § 5107(a). If he has not, his claims must fail, and VA is not obligated to assist the veteran in their development. 38 U.S.C.A. § 5107(a); Grottveit v. Brown, 5 Vet. App. 91 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The Court has stated repeatedly that 38 U.S.C.A. § 5107(a) unequivocally places an initial burden on a claimant to produce evidence that a claim is well grounded. See Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit at 92; Tirpak at 610-11. A well-grounded claim is a plausible claim, that is, a claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has stated that the quality and quantity of evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit at 92-93. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Id. Further, in order for a direct service connection claim to be considered plausible, and therefore well grounded, there must be evidence of both a current disability and evidence of relationship between that disability and an injury or disease incurred in service or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). As noted previously, the record contains evidence documenting that the veteran developed basal cell carcinoma after service, and the April 1998 VA examiner indicated that it was reasonable to conclude that extensive sun damage in young adulthood could lead to the development of basal cell carcinoma. In addition, in his July 2000 statement, Dr. Hyatt indicated that basal cell carcinoma and squamous cell carcinoma are sun induced cancers and are typically seen in patients with chronic sun exposure particularly in the first 20 years of life. He noted that intense sun exposure for prolonged periods, particularly in young adulthood, certainly would be contributory to the development of skin cancers. The post-service medical evidence also shows that the veteran has facial scarring due to the excision of skin lesions, including skin cancer. In light of the April 1998 and July 2000 medical opinions suggesting that the veteran's sun exposure in service could possibly have led to the development of skin cancer and the medical evidence of facial scars due to excision of skin cancers, the Board concludes that the veteran's claims for service connection for skin cancer, to include on the basis of exposure to Agent Orange, and for facial scarring are well grounded. ORDER New and material evidence having been submitted, reopening of the claim for service connection for skin cancer, to include on the basis of exposure to Agent Orange, is granted. The Board having determined that the claim for service connection for skin cancer, to include on the basis of exposure to Agent Orange is well grounded, the appeal is granted to this extent. The Board having determined that the claim for service connection for facial scars is well grounded, the appeal is granted to this extent. REMAND The Board notes that while the April 1998 and July 2000 medical statements are somewhat supportive of the veteran's claims for service connection for skin cancer and facial scarring, they are insufficient for adjudication purposes. When a veteran submits a well-grounded claim, VA has a duty to assist the veteran in its development, including the conduct of a thorough and contemporaneous examination. See Green v. Derwinski, 1 Vet. App. 121 (1991). 38 U.S.C.A. § 5107 (West 1991). Accordingly, the Board is of the opinion that another examination would be helpful in the adjudication of the veteran's claims. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran through his representative and request that he identify specific names, addresses, and approximate dates of treatment for all health care providers, private and VA, who may possess additional records pertinent to his claims. When the requested information and any necessary authorizations have been received, the RO should attempt to obtain copies of all pertinent records which have not already been obtained. 2. Then, the RO should arrange for the veteran to undergo a VA examination by a physician with appropriate expertise to determine the nature, extent and etiology of his skin cancer and facial scarring. All indicated studies should be performed and all findings should be reported in detail. The examiner should be requested to provide an opinion with respect to each currently present skin cancer or residual thereof and any currently present facial scarring as to whether it is at least as likely as not that the condition is etiologically related to service, to include service sun exposure and service Agent Orange exposure. The rationale for all opinions expressed should be provided. The veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner. The examination report is to reflect that a review of the claims file was made. The examination report must be typed. 3. Thereafter, the RO should review the claims file and ensure that the above development has been conducted and completed in full. Then, the RO should undertake any other indicated development and readjudicate the issues of entitlement to service connection for skin cancer, to include on the basis of exposure to Agent Orange, and for facial scars. If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a Supplemental Statement of the Case and provide the veteran and his representative with an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Shane A. Durkin Veterans Law Judge Board of Veterans' Appeals