Citation Nr: 1301932 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 11-21 005A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for skin cancer. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from January 1943 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2010 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Indianapolis, Indiana, wherein the RO denied the Veteran's claim for a rating in excess of 10 percent for kidney stones and denied his claim for service connection for skin cancer. In June 2010, the Veteran filed a notice of disagreement (NOD) and a statement of the case (SOC) was issued in June 2011. However, in a VA Form 21-4138, Statement in Support of Claim, dated in August 2011, which the RO construed as a substantive appeal (VA Form 9), the Veteran stated that he was only appealing the decision on his claim for service connection for skin cancer. Thus, as the Veteran did not perfect his appeal with respect to his increased rating claim for kidney stones, this matter is not in appellate status. Although in September 2011, the Veteran had requested a Travel Board hearing, he subsequently withdrew that request in November 2011. See 38 C.F.R. § 20.702(e) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In this case, the Veteran contends that he currently has skin cancer that is related to his period of active service. He has essentially provided two theories as to how his skin cancer is linked to his military service. In a VA Form 21-4138, dated in April 2010, and a statement, dated in January 2011, he stated that during service, he was aboard a ship (PC 1192) that traveled from Iceland to the Caribbean. The Veteran indicated that he noticed some blemishes on his body. According to the Veteran, he was told that the blemishes were due to "the sun and climate change" and that they would go away. The Veteran reported that almost all of the blemishes went away. However, at least two blemishes did not go away: one on his back and one above his left eye. He stated that the blemishes started to seep. According to the Veteran, years later, the blemish on his back was removed at a VA Medical Center (VAMC). The eye blemish was removed by Mohs surgery at the IU (Indiana University) Medical Center. Thus, the Veteran's first theory is that due to in-service sun exposure, he developed blemishes which were later diagnosed as skin cancer. In the April 2010 and January 2011 statements, the Veteran also provided a second theory as to the etiology of his skin cancer. He stated that while he was aboard a ship (PC 1192), he had to paint the bilge with "red lead" paint. According to the Veteran, the bilge was a confined area without ventilation and the "toxic fumes" started to affect him. He indicated that after he finished painting, he noticed blemishes on his body. The Veteran reported that almost all of the blemishes went away except for the ones on his back and above his left eye. Therefore, the Veteran's second theory is that due to in-service exposure to toxic fumes from the "red lead" paint, he developed blemishes which were later diagnosed as skin cancer. The Veteran's service treatment records are negative for any complaints or findings of skin problems, including skin cancer. In November 1945, the Veteran underwent a separation examination. At that time, his skin was noted to be normal. However, the Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Thus, he is competent to say that he developed skin blemishes during service. The evidence of record includes private medical records from the IU Medical Center, University Department of Dermatology, which show that the Veteran underwent Mohs surgery in October 2006. However, the records only include a letter notifying the Veteran of his appointment for the Mohs surgery; the records do not include any treatment records or show the conditions for which the Veteran received the surgery. Thus, it appears that not all records related to the Veteran's Mohs surgery have been associated with the claims file. VA has a duty to obtain relevant records of private treatment. 38 U.S.C.A. § 5103A (b) (West 2002); Massey v. Brown, 7 Vet. App. 204 (1994). VAMC outpatient treatment records, dated from June 2006 to May 2010, are negative for any evidence showing that the Veteran had a skin lesion removed from his back. However, the records do show that in April 2009, the Veteran underwent a follow-up evaluation after four lesions were removed from his face in March 2009. Three of those lesions were diagnosed as basal cell carcinomas and one lesion was diagnosed as a compound nevus. In December 2009, it was noted that the Veteran had a small actinic keratosis on his left shoulder. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, 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. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon at 83. A Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon at 83. The Veteran's Notice of Separation From U.S. Naval Service shows that he served at Camp Knox in Iceland, and at Guantanamo Bay in Cuba. This evidence supports the Veteran's contention that his ship traveled from Iceland to the Caribbean and that he had in-service sun exposure. Thus, given that the evidence of record supports the Veteran's contention that he had in-service sun exposure, shows a current skin disorder, including skin cancer, and also given that the Veteran has provided statements that he had skin conditions since active duty, the Board finds that the Veteran should be provided with a VA examination to determine whether any of his current skin disorders began during service or are related to sun exposure during service or his claimed in-service exposure to toxic fumes from "red lead" paint. The evidence of record further includes a data sheet from the Social Security Administration (SSA) which shows that the Veteran is receiving SSA disability benefits. As the RO has not yet attempted to obtain any SSA disability determination and the underlying medical records, the Board finds that the RO must seek to obtain these records upon remand. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); see also Tetro v. Gober, 14 Vet. App. 100, 110 (2000) (holding that VA has a duty to request information and pertinent records from other Federal agencies, when on notice that such information exists). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the SSA and obtain a copy of any decision(s) regarding the Veteran's claim for disability benefits, as well as any medical records in its possession. A response, negative or positive, must be associated with the claims file. 2. Take the necessary steps to obtain all private records pertaining to the Veteran's October 2006 Mohs surgery, including records from IU Medical Center, in accordance with 38 C.F.R. § 3.159. If additional information is needed to complete this request, the Veteran should be so advised of the specific information needed as well as any necessary medical releases. 3. The RO must make arrangements with the appropriate VA medical facility for the Veteran to undergo a VA dermatological examination to ascertain the etiology of any skin disorder, to include skin cancer. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. After a review of the examination findings and the entire evidence of record, the examiner must answer the following question: The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's skin disorders, to include his skin cancer, which includes his basal cell carcinomas of the face, began during or are related to the Veteran's active duty, to include his in-service sun exposure and/or his allegations of in-service exposure to toxic fumes from "red lead" paint. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship or a finding of aggravation; less likely weighs against the claim. A rationale should be provided for any opinion or conclusion expressed. 4. After completion of the above and any other development deemed necessary, the RO should review and re-adjudicate the issue on appeal. If such action does not grant the benefit claimed, the RO should provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. 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). _________________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).