Citation Nr: 1237304 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 09-27 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial compensable evaluation for bilateral hearing loss. 2. Entitlement to service connection for residuals of cancer of the neck, to include a scar. 3. Entitlement to service connection for residuals of cancer of the left hand, to include a scar. 4. Entitlement to service connection for a skin disorder. 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for coronary artery disease. 7. Entitlement to service connection for residuals of strokes. 8. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Monica Cliatt, Attorney WITNESSES AT HEARING ON APPEAL Veteran, Spouse, and Daughter ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In September 2012, the Veteran testified at a hearing via videoconference before the undersigned Veterans Law Judge. Because of statements made by the Veteran's representative during the Board hearing, the Board must clarify what is and what is not on appeal. During the hearing, the Veteran's representative and a law student, Barbara Gremade, both responded to the undersigned and presented questions to the witnesses. Ms. Gremade withdrew several of the issues that had been perfected to the Board, necessitating an issue-by-issue discussion on the record as to what the Veteran wanted to appeal. When asked about the appeal as to the noncompensable rating assigned for hearing loss, Ms. Gremade stated "[y]es we are contesting the effective date on that." September 2012 Hearing Transcript at 6. Later during the hearing, Ms. Gremade questioned the Veteran as to whether he informed a VA examiner during a June 2008 examination that he had ringing in his ears, whether he talked about the ringing in his ears during a VA examination on December 29, 2011, and whether the ringing worsened between the 2008 and 2009 examinations. Id. at 23-24. It appears that Ms. Gremade has conflated the tinnitus and hearing loss issues. Although she stated early in the hearing that the Veteran wished to appeal the effective date of the hearing loss issue it appears from her later questioning of the Veteran that what she intended to appeal was the effective date of the grant of service connection for tinnitus. As explained in the following paragraphs, the Board cannot obtain jurisdiction over either effective date issue from the statements made during the hearing and the Board does not currently have jurisdiction over either effective date issue. As to the effective date of the grant of service connection for hearing loss, the period to appeal that downstream issue has expired. See 38 U.S.C.A. § 7105(b) (except for simultaneously contested claims, the claimant has one year from the date of mailing of notice of an unfavorable decision to initiate an appeal to the Board by filing a notice of disagreement (NOD)). In April 2009, the RO received an NOD as to the noncompensable initial rating assigned for hearing loss in the October 2008 rating decision. Specifically, his representative at that time stated "[w]ith regard to his claim for bilateral hearing loss, which was determined to be service connected, [the Veteran] disagrees with the VA's evaluation of zero (0) percent." That NOD did not place on appeal the issue of the effective date for grant of service connection. See Holland v. Gober, 10 Vet. App. 433, 436 (1997) (holding that an RO's grant of service connection during the appellate process is "a full award of benefits on the appeal initiated by [the first NOD]" and any disagreement with the disability rating or effective date required a separate NOD to place those elements or issues in appellate status). Because the RO did not receive an NOD as to the effective date of grant of service connection for hearing loss within one year of the mailing of the October 2008 decision, the decision as to the effective date assigned is final and may not now be appealed to the Board. See 38 U.S.C.A. § 7105(c) (West 2002) (if no NOD is filed within the prescribed period the determination becomes final). With regard to the grant of service connection for tinnitus and assignment of the 10 percent rating effective December 29, 2011 (the date of a VA examination), the testimony during the Board hearing cannot constitute an NOD. See Beryle v. Brown, 9 Vet. App. 24, 28 (1995) (explaining that "hearing testimony before the BVA . . . cannot constitute a valid NOD because it was taken before the Board and not the RO"). Although 38 C.F.R. § 20.204 (2012) provides for withdrawal of an appeal on the record at a hearing, that regulation is specific to withdrawals and applies only to matters for which an appeal already exists; it does not address NODs and has no effect on the explanation in Beryle. Again, it is noted that the appeal period for the grant of service connection for tinnitus as well as the assignment of the 10 percent rating did not begin to run until the July 3, 2012 mailing of notice of that decision. Hence, the Veteran has sufficient time to file a written notice of disagreement with the RO, as is required by statute. See 38 U.S.C.A. § 7105(b) (West 2002). The issues of entitlement to service connection for cancer or residuals of cancer of the neck and hand, for a skin disorder, and for a psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO FINDINGS OF FACT 1. On the record during the September 2012 Board hearing, the Veteran withdrew his appeal regarding the issue of entitlement to service connection for hypertension. 2. On the record during the September 2012 Board hearing, the Veteran withdrew his appeal regarding the issue of entitlement to service connection for coronary artery disease. 3. On the record during the September 2012 Board hearing, the Veteran withdrew his appeal regarding the issue of entitlement to service connection for residuals of strokes. 4. Right ear hearing loss is manifested, at most, by an average pure tone threshold of 32.5 decibels with speech discrimination of 86 percent; left ear hearing loss is manifested, at most, by an average pure tone threshold of 27.5 decibels with speech discrimination of 82 percent. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding the issue of entitlement to service connection for hypertension have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202 , 20.204 (2012). 2. The criteria for withdrawal of the appeal regarding the issue of entitlement to service connection for coronary artery disease have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202 , 20.204 (2012). 3. The criteria for withdrawal of the appeal regarding residuals of strokes have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202 , 20.204 (2012). 4. The criteria for a compensable evaluation for hearing loss have not been met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. § 4.1, 4.2, 4.7, 4.10, 4.21, 4.85 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Withdrawn Appeals Under 38 U.S.C.A. § 7105 the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.202. A substantive appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. Id. In the October 2008 rating decision, the RO denied service connection for seven issues. Those issues were as follows: (1) Service connection for scar, residual of squamous cell carcinoma of the neck. (2) Service connection for scar, left (non-dominant) hand cancer. (3) Service connection for skin disability. (4) Service connection for hypertension. (4) Service connection for coronary artery disease. (5) Service connection for residuals, two strokes. (6) Service connection for PTSD. The Veteran perfected appeals to the Board of the RO's denial of service connection for each disability by the filing of an NOD in March 2009 and the filing of a substantive appeal in September 2009 following the June 2009 mailing of a statement of the case. The RO certified those issues to the Board in August 2012. On the record during the September 2012 Board hearing, the Veteran's representative stated that the Veteran was not contesting the denial of service connection for hypertension, coronary artery disease, residuals of stroke, and a psychiatric disorder. September 2012 Hearing Transcript at 5-6. Later during the hearing, the representative indicated that the Veteran did want to contest the denial of service connection for a psychiatric disorder, to include PTSD. Id. at 34. Therefore, the appeal as to entitlement to service connection for a psychiatric disorder, to include PTSD, is currently before the Board. Based on these facts, there remain no allegations of errors of fact or law for appellate consideration with regard to the issues of entitlement to service connection for hypertension, coronary artery disease, and residuals of strokes. Hence, the Board is without jurisdiction over those issues. 38 U.S.C.A. § 7104(a). The appeal as to those issues must therefore be dismissed. II. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2008. An additional notice letter was sent to the Veteran in November 2011. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veterans service and personnel records and VA treatment records. It also obtained records from his disability claim with the Social Security Administration (SSA) and assisted him in obtaining records from Drs. "K.T." and "M.S." VA provided the Veteran with audiology examinations in October 2008 and December 2011. Both examinations documented the relevant history, both examiners noted review of the claims file. Neither examination required a medical opinion as to the rating issue. The 2008 examination report is adequate as far as assignment of schedular ratings. See Stefl v. Nicholson, 21 Vet.App. 102, 123 (2007); see also Lendenmann v. Principi, 345, 349 (1992) (disability ratings for hearing loss are assigned through mechanical application of the rating schedule to the results of audiometric evaluations). The 2008 examination report does not refer to functional effects caused by his hearing loss disability, and therefore does not provide information to determine whether an extraschedular referral is warranted. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (explaining that examination reports must include a description of functional effects caused by hearing disability because such effects go to extraschedular consideration). That deficiency was, however, remedied by the December 2011 examination report which does include a description of the functional effects of the Veteran's hearing loss disability. For these reasons, the Board finds that VA has met its duty to assist the Veteran by providing him with an adequate audiology examination. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Disability Ratings - Hearing Loss Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. This appeal arises from the rating decision in which service- connection was established for hearing loss. As such, the Board has considered whether different ratings for different periods of time, based on the facts found, are warranted; a practice referred to as assigning "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz . To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. For exceptional hearing impairment, 38 C.F.R. § 4.86 (2012), states that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz , the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. Id. Evidence prior to an October 2008 C&P examination does not show that the Veteran's hearing loss has met the criteria for a compensable rating for any period of time since he filed his claim for service connection for hearing loss in April 2008. The October 2008 examination report includes audiometric test results of pure tone thresholds in the right ear at 1000, 2000, 3000, and 4000 Hertz of 15, 20, 40, and 55 decibels, respectively. Those values yield an average of 32.5 decibels for the right ear. Pure tone thresholds measured in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz were 5, 15, 45, and 45decibels, respectively. Those values yield an average of 27.5 decibels for the left ear. Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 82 percent in the left ear. The report contains no statements as to the function effect of the Veteran's hearing loss. It does mention the effects of his tinnitus, but, as explained in the INTRODUCTION to the instant decision, there is no issue involving his tinnitus currently within the Board's jurisdiction. Another audiology examination was conducted in December 2011. Audiometric test results included pure tone thresholds in the right ear at 1000, 2000, 3000, and 4000 Hertz of 5, 10, 40, and 60 decibels, respectively. The average thresholds over the four frequencies is therefore 28.75 decibels. Pure tone thresholds measured in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz were 10, 15, 45, and 55 decibels, respectively. The average thresholds over the four frequencies is therefore 31.25 decibels. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear. The examiner diagnosed sensorineural hearing loss for each ear. Under a heading for the Veterans report of the "impact of his hearing loss on the ordinary conditions of daily life, including the ability to work." The examiner listed that, in the Veteran's own words, his "[h]hearing loss causes difficulty understanding conversational speech in crowds and noisy settings." None of this evidence shows the Veteran to have had an exceptional pattern of hearing loss as defined in 38 C.F.R. § 4.86 and therefore that section is not for application. Test results from the 2008 examination yield assignment of Roman numeral II for the right ear and Roman numeral III for the left ear by application of Table VI. Application of Table VII yields a noncompensable rating. Test results from the 2011 examination yield assignment of Roman numeral I for each ear by application of Table VI. Application of Table VII yields a noncompensable rating. There are no audiometric or speech recognition test results of record showing a more severe hearing loss for any period of time on appeal. The Board has considered the Veteran's statements and those of other lay witnesses with regard to his hearing loss but none of those statements provide evidence as to the schedular criteria for rating hearing loss disability. Based on the above, the Board finds the preponderance of evidence to show that the Veteran's hearing loss disability does not approximate the criteria for a compensable rating for any period of time on appeal. Also considered by the Board is whether referral for extraschedular consideration is warranted. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the Veteran has reported that his hearing loss results in difficulty understanding conversational speech and hearing in crowds and in noisy settings. As to the conversational speech difficulty, the schedular criteria contemplates this symptom because it is based in part on speech recognition ability. Moreover, the schedular criteria accounts for the severity of the Veteran's symptoms in this regard and provides ratings for less speech recognition ability than that demonstrated by the Veteran. The first Thun element is therefore not satisfied in this regard. It is not clear that the reported difficulty hearing in crowds and noisy settings is contemplated by the schedular criteria. However, this case does not involve any related factors as described in Thun and in 38 C.F.R. § 3.321(b) or any factors similar to those described. It is noted that the Veteran is in receipt of Social Security disability benefits with a primary diagnosis of aortic valve disease. He stopped working because of his heart problems, as documented in the SSA disability records. There is no indication that his difficulty hearing in crowds or in noisy environments has ever caused marked interference in employment. There is no evidence of hospitalization related to his hearing loss. There is no evidence of any other related factor similar to those listed in 38 C.F.R. § 3.321(b) in this case. Therefore, the second Thun element is not met. Hence, the Board declines to remand this issue for referral for extraschedular consideration. In summary, the preponderance of evidence is against granting a compensable schedular rating for hearing loss for any period on appeal and is against referral for extraschedular consideration. Therefore, the appeal as to this issue must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal as to entitlement to service connection for hypertension is dismissed. The appeal as to entitlement to service connection for coronary artery disease is dismissed. The appeal as to entitlement to service connection for residuals of strokes is dismissed. Entitlement to a compensable evaluation for hearing loss is denied. REMAND Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). "To establish a right to compensation for a present disability, a Veteran 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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A remand is necessary in this case so that VA can meet its duty to assist the Veteran in obtaining evidence to substantiate his claim. In particular, VA must afford the Veteran medical examinations and obtain relevant expert opinions with regard to his claims of entitlement to service connection for cancer and its residuals, a skin disability, and a psychiatric disorder. A. Skin and Cancer Claims The Veteran contends that he contracted cancer after service and has suffered from a skin disease as the result of in-service exposure to Agent Orange and to a significant amount of sunlight resulting in sunburns. The Veteran served in the Vietnam between 1965 and 1967 and is thus presumed to have been exposed to Agent Orange. 38 C.F.R. § 3.307(a)(6)(iii) (2012). He testified that he was always badly sunburned during his service in Vietnam and that during service he noticed small lesions on his neck. His spouse testified that she married the Veteran shortly after his return from Vietnam and that he has had skin problems, including of his hands, since that time. There is a diagnosis of squamous cell carcinoma of the neck prior to the date that he filed his claim for disability compensation. When asked by his representative if a physician had ever commented as to how his squamous cell carcinoma originated, the Veteran answered that :it probably came being over there and being on the boats out, out there on the water and in the sun." September 2012 Hearing Transcript at 12. When asked about his claim that he had skin cancer of his hand related to service and if a physician had ever diagnosed him with cancer of the hand, he testified that "he says being exposed to the Agent Orange over there and you being in the sun constantly." Id. at 15. His daughter testified that the Veteran was seen by a dermatologist with regard to the skin of his hands and head and seen in an emergency room in June of the previous year and that both times a physician mentioned Agent Orange. Id at. 28. She testified that she was present on at least one of these occasions. Id. at 27. Service treatment records include a July 1967 note stating that the Veteran sought "more medication for sunburn on lower lip." The medical professional stated that it looked like he had an insect bite on his lower lip. There is no other mention of skin problems in the service treatment records. April 1996 treatment notes from Dr. "M.S." document that the Veteran had actinic keratoses of his hands. The clinician noted that he had sun damage of his skin at the right lateral neck. VA consultation notes from November 2007 document that the Veteran was found to have well to moderate differentiated squamous cell carcinoma of the neck. VA dermatology notes from January 2008 document that there was no evidence of squamous cell carcinoma residual of the neck; the physician could find no residual tumor. There are four factors for consideration in determining whether the duty to assist requires that VA provide a medical examination or obtain a medical opinion with respect to a veteran's claim for compensation benefits. These four factors are: (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 diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with 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) and 38 C.F.R. § 3.159(c)(4). The third factor has a low threshold and may be met by such evidence as medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the factors to be considered for determining whether VA has a duty to provide a medical examination and/or obtain an expert opinion are all present. The diagnosis of carcinoma of the neck in November 2007 and the residual scar in 2008 as well as the testimony from the Veteran's family members is evidence of the claimed disabilities. His reports of sunburn during service together with his and his daughter's reports of what physicians have told him is sufficient for the Board to determine that the in-service factor is present to the extent of requiring VA to provide an examination. Similarly, his and his daughter's testimony as to what physicians told him meets the low threshold of the indication of an association of symptoms with service factor for requiring VA to provide an examination. There is insufficient medical evidence of record for the Board to decide these claims at present, satisfying the fourth factor for requiring VA to provide an examination. Of note, the Veteran and his daughter have testified that they were present when a physician referred to his skin conditions along with exposure to Agent Orange. This the Board finds is sufficient to raise the question of direct (as opposed to only presumptive) service connection. Merely because a condition is not one subject to presumptive service connection does not foreclose proof of direct service connection, i.e., that the condition was caused by service. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). In this regard, a negative nexus conclusion based solely on the National Institute of Sciences Agent Orange Updates is not an adequate opinion because such updates depend, at least in part, on whether there is inadequate or insufficient evidence to determine whether an association exists between exposure to Agent Orange and a given disease. See 72 Fed. Reg. 32395 (June 12, 2007). Therefore, those results do not support a conclusion of causation or lack of causation. The Board notes this to avoid a conclusory and unsupported opinion unfavorable to the Veteran but expresses no preference for and has no opinion as to whether such expert opinion should be favorable or unfavorable. The Veteran has testified that physicians have referred to excessive exposure to sunlight with regard to his skin conditions. The Veteran has testified that he was frequently sunburned during service. Hence, on remand, the examiner must address whether excessive in-service exposure to ultraviolet radiation from the sun caused any skin condition that has been present at any time since he filed his claim in April 2008. Therefore, a remand is necessary to afford the Veteran an examination of his skin and obtain an expert opinion as to what skin condition he has and whether he has cancer of the hand or neck. Furthermore, the Board requires an opinion as to whether any such conditions are related to his active service. B. Psychiatric Disability VA afforded the Veteran a psychiatric examination in December 2011. For Axis I diagnoses, the examiner provided a diagnostic impression of "[n]o acute psychiatric condition noted." He provided an opinion that the Veteran does not have a psychiatric disease. He explained that the Veteran's symptoms are of insufficient severity and are not clinically significant. In a past psychiatric history section of the examination report, the examiner stated as follows: "Past psychiatric history is negative for inpatient treatment. He denies any history of suicide or homicide. He denies any history of drug or alcohol problems, psychotropic medication treatment, counseling, tobacco use or legal problems." The Board's review of the claims file discloses a discharge summary for the period from December 2007 to March 2008 during which VA provided rehabilitation following heart attacks, cerebral vascular accidents, and aortic dissection. Those notes include a diagnosis of depression, there is a note indicating that he had mild clinical depression, and he was prescribed citalopram for depression. There are February 2009 notes indicating that he had no psychiatric diagnosis, but given the other notes and the prescribed citalopram, the Board finds problematic the examiner's statement that the Veteran had no history of psychotropic medication treatment. It appears that the statement that he had no psychotropic medication treatment was based solely on the Veteran's report during the examination. However, the entire relevant medical history must be considered in order for an examination and opinion to be adequate in this context. See Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007). Given the discrepancy between what the Veteran apparently reported and what is found in the treatment records, the Board cannot find that the December 2011 examination is adequate. Furthermore, the examiner's finding that the Veteran had no acute psychiatric diagnosis does not appear to take into account whether the depression listed in the VA treatment records in 2009 was a psychiatric disorder. The current disability element of a service connection claim is satisfied if the disability is present at any time during the course of the claim and appeal, though it late resolves. See McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). Therefore the examination is inadequate because it does not reference that finding of depression in the VA treatment records and it follows, does not provide an opinion as to, if that reference is to a psychiatric disorder, whether the depression was due to the Veteran's service. Once VA provides a medical examination or obtains an expert opinion it must generally ensure that the examination and opinion are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, a remand is necessary so that VA can provide the Veteran with an adequate examination and obtain an adequate expert opinion as to the psychiatric disability issue. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a C&P examination of his skin by an appropriate medical professional. The claims file must be provided to the examiner, the examiner must review the claims file in conjunction with the examination and the examiner must annotate his or her report as to whether the claims file was reviewed. The examiner is asked to accomplish the following: (a) Identify all diagnosed conditions of the Veteran's skin that have existed at any time since he filed his claim for benefits in April 2008. This must include whether he has had cancer of his left hand or neck at any time since April 2008 and, if so, the type of cancer. This must also include any residuals of cancer of the left hand or neck during that time frame, to include, but not limited to, scars. (b) Provide an expert opinion as to whether it is as least as likely as not (a 50 percent or greater probability) that any diagnosed condition of the Veteran's skin had onset during his active service or was caused by his active service. This opinion must specifically address whether it is at least as likely as not that exposure to ultraviolet radiation from the sun during service caused any such condition. This opinion must also specifically address whether it is at least as likely as not that exposure to Agent Orange during service caused any such condition. The examiner must take as fact that the Veteran was exposed to Agent Orange during service. The examiner is cautioned that a conclusion that the diseases were not caused by exposure to Agent Orange is not sufficiently supported by rationale that depends solely on the National Institute of Sciences Agent Orange Updates. The Board has no opinion or preference as to what conclusion the examiner reaches. 2. Schedule the Veteran for a C&P examination by a VA psychiatrist or psychologist with regard to his claim of entitlement to service connection for a psychiatric disorder. The claims file must be provided to the examiner, the examiner must review the claims file in conjunction with the examination and the examiner must annotate his or her report as to whether the claims file was reviewed. The examiner is asked to accomplish the following. (a) Identify any psychiatric disorder that has existed at any time since the Veteran filed his claim for benefits in April 2008, even if the condition is no longer present. The examiner must address the February 2009 VA treatment records notation that he scored in the range of mild clinical depression on the Geriatric Depression Scale, the fact that he was prescribed citalopram for depression at that time, and the listing of depression in the discharge summary for the period from December 30, 2008 to March 6, 2009. (b) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any identified psychiatric disorder present at any time since he filed his claim for benefits in April 2008 had onset during or was caused by the Veteran's active service. The examiner must provide a complete rationale for any conclusions reached. 3. The RO must review the examination reports. If the reports do not comply with the Board's directives, the RO must take corrective measures. 4. Then, readjudicate the issues that are the subject of this Remand. If any benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity for response prior to returning the matter or matters to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs