Citation Nr: 1307746 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 09-27 701A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for skin cancer, to include basal cell carcinoma of the left temple, right temple, and right forehead, and squamous cell carcinoma of the right temple and chest, to include as due to ionizing radiation exposure. 2. Entitlement to service connection for skin cancer, to include basal cell carcinoma of the left temple, right temple, and right forehead, and squamous cell carcinoma of the right temple and chest, to include as due to ionizing radiation exposure. 3. Entitlement to service connection for non-malignant thyroid nodular disease, to include as due to ionizing radiation exposure. 4. Entitlement to service connection for left eye cataracts, to include as due to ionizing radiation exposure. 5. Entitlement to an initial compensable rating for basal cell carcinoma of the right lower leg. 6. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran had over 20 years of active duty service from January 1943 to December 1963. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, in which the RO granted service connection and assigned initial noncompensable (0 percent) ratings for basal cell carcinoma of the left lower leg and bilateral hearing loss, effective May 19, 2006 and January 22, 2008, respectively. The RO also denied service connection for non-malignant thyroid nodular disease, left eye cataracts, and basal cell carcinoma of the right forehead, right temple, left temple, and squamous cell carcinoma of the right temple. The St. Petersburg, Florida RO is the RO of jurisdiction in this case. In a July 2009 rating decision, the St. Petersburg RO found that a clear and unmistakable error had been made in the award of service connection for basal cell carcinoma of the left lower leg, and the anatomical location was corrected to the right lower leg. In May 2010, the Veteran filed a claim for service connection for skin cancer and cancer of the chest. The RO determined that the claim for skin cancer of the chest should not be separated out from the claim for service connection for skin cancer for which an appeal had been perfected. Accordingly, in the September 2011 supplemental statement of the case (SSOC) the RO characterized this claim as entitlement to service connection for basal cell carcinoma of the right forehead, right temple, left temple, squamous cell carcinoma of the right temple, to include the claim for skin cancer/skin cancer of the chest, diagnosed as squamous cell carcinoma, as a result of exposure to ionizing radiation. As will be discussed below, the Veteran initially filed a claim for service connection for a skin rash, which was denied in July 1990. Evidence of record at that time revealed actinic keratosis of the chest. The Veteran filed a request to reopen his claim for a skin condition in September 1993, which was denied in November 1993. Evidence of record at that time revealed chronic dermatitis of the chest, actinic keratosis of the chest, and squamous cell carcinoma of the right temple. In March 1995, the Veteran filed a claim for service connection for melanoma. He filed a request to reopen his claim for service connection for a chest rash in May 1995. In an April 1996 rating decision, the RO found that the claim for service connection for actinic keratosis, claimed as melanoma, was not well grounded. The RO discussed that the Veteran was being treated for chronic skin problems diagnosed as actinic keratosis and/or active dermatitis, but there was no evidence that his actinic keratosis, claimed as skin cancer, was due to service, to include in-service radiation exposure. Evidence of record at that time revealed basal cell carcinoma of the left temple. In light of the April 1996 denial of the claim for service connection, new and material evidence is required to reopen the claim for service connection for skin cancer. The RO has addressed the claim for service connection on the merits. However, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim has been received, the Board has characterized this matter on appeal as reflected on the title page. Regarding the claim for service connection for non-malignant thyroid nodular disease, the Board notes that the claims file also reflects findings of and treatment for hypothyroidism. In the April 1996 rating decision, the RO denied service connection for hypothyroidism, claimed as thyroid problems. In July 2007, the Veteran filed a claim for service connection for non-malignant thyroid nodular disease. The Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) has found that the use of "condition(s)" in regulation 38 C.F.R. § 3.159(a)(3) indicates that a single claim can encompass more than one condition and that an appellant can reasonably expect that alternative current conditions within the scope of the filed claim will be considered. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, the Veteran's case is distinguishable. This is not a situation where separate diagnoses were rendered for the same reported symptoms during the initial processing of a claim for benefits. Rather, service connection for hypothyroidism had been previously denied in a final RO decision; therefore, new and material evidence is required to reopen that claim. A claim for service connection for non-malignant thyroid nodular disease was filed in July 2007 and was considered factually distinct so as not to preclude the Veteran from pursuing that claim apart from the claim for service connection for hypothyroidism which had been denied. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996); Boggs v. Peake, 520 F.3d 1330, 1334-35 (Fed. Cir. 2008). Accordingly, the Board finds that the instant appeal is limited to the matter of service connection for non-malignant thyroid nodular disease. If the Veteran wishes to reopen a claim for service connection for hypothyroidism, he should contact the RO and file an appropriate application to reopen. In his August 2009 VA Form 9 (substantive appeal), the Veteran requested a local hearing before a hearing officer. He subsequently requested a hearing before a Veterans Law Judge at the RO (Travel Board hearing). A May 2012 letter advised the Veteran that he was scheduled for a Travel Board hearing in June 2012; however, the record reflects that he failed to report for that hearing. Instead, in a June 2012 letter, the Veteran's son stated that the Veteran was too frail to attend the hearing scheduled for June 2012 as it was too far from his home. He asked to be scheduled for a hearing in the Miami area. The Board, unfortunately, does not hold hearings in the Miami area. Additionally, the record does not reflect that the Veteran has withdrawn his request for a local hearing. The Veteran's desires with regard to a hearing will be clarified on remand. However, in light of the favorable decision regarding the request to reopen the claim for service connection for skin cancer, the Board finds that a hearing on this issue is not necessary and there is no prejudice to the Veteran by proceeding with this portion of the appeal. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file reflects that the Veteran was previously represented by the American Legion (as reflected in a September 1993 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative). In March 2012, the Veteran filed a VA Form 21-22 appointing Disabled American Veterans as his representative. The Board recognizes the change in representation. The Board has reviewed the Veteran's Virtual VA file and finds that it does not include any additional relevant documents. The Board notes that, in an April 2010 rating decision, the RO denied service connection for right eye cataracts. Stapled to a copy of the May 2010 notice letter advising the Veteran of this decision is a handwritten note which states, "Left behind in office by vet. He needs to file an NOD [notice of disagreement]. RD [rating decision] denied cataracts as not having diagnosis for such." Also stapled to the May 2010 notice letter are several VA treatment records pertaining to the claimed right eye cataracts. These treatment records, submitted within one year of the April 2010 rating decision, are relevant to the claim for service connection for right eye cataracts. See 38 C.F.R. § 3.156(b) (2012) (when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period). This matter is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. In February 1990, the Veteran filed his original claim for service connection, stating that he was an "atomic veteran." In a March 1990 letter, the RO asked the Veteran to indicate what disabilities he claimed resulted from his exposure to radiation while participating in the occupation of Nagasaki. He responded in April 1990 that he had possible cancer, skin problems, kidney problems, a urology problem, and piles from the atomic area and from his military service. Post-service treatment records reflect findings of hemorrhoids. In a July 1990 rating decision, the RO denied the Veteran's claims for a skin rash, ingrown toenails, hearing loss, hematuria, and a benign mass at the left base of the tongue, but did not address a claim for service connection for hemorrhoids. The issue of entitlement to service connection for hemorrhoids has been raised by the record, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over this matter, and it is referred to the AOJ for appropriate action. Finally, subsequent to the July 1990 rating decision discussed above, the Veteran filed an NOD in August 1991, more than one year after notice of the July 1990 rating decision. See 38 C.F.R. § 20.302. The RO advised the Veteran in an August 1991 letter that his NOD was not timely and stated that, in order to reopen his claim, he would have to submit new and material evidence. While the August 1991 NOD was not timely to initiate an appeal in regard to the claims denied in July 1990, the Board finds that it may be construed as a request to reopen these claims. While the claims for service connection for ingrown toenails and hearing loss were granted in subsequent rating decisions, and the claim for service connection for a skin rash was subsequently addressed by the RO in the November 1993 rating decision discussed above, requests to reopen claims for service connection for hematuria and a benign mass at the left base of the tongue have not been addressed. Of note, in her January 2013 Informal Hearing Presentation (IHP), the Veteran's representative noted in regard to the claim for service connection for non-malignant thyroid nodular disease that the Veteran reported being treated for a mass on the base of the tongue. Requests to reopen claims for service connection for hematuria and a benign mass at the left base of the tongue have been raised by the record, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over these matters, and they are also referred to the AOJ for appropriate action. This is the Veteran's notice that his case 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 Board's decision reopening the claim for service connection for skin cancer is set forth below. The remaining claims listed on the title page are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. In an April 1996 rating decision, the RO denied service connection for actinic keratosis, claimed as melanoma. Although notified of the denial in an April 1996 letter, the Veteran did not initiate an appeal. 3. Evidence associated with the claims file since the April 1996 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for skin cancer and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO's April 1996 rating decision denying service connection for actinic keratosis, claimed as melanoma, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2012). 2. As pertinent evidence received since the April 1996 denial is new and material, the criteria for reopening the claim for service connection for skin cancer are met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim 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). Given the favorable disposition of the request to reopen the claim for service connection for skin cancer, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. Factual Background and Analysis VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). See also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from 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). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). For veterans who were exposed to ionizing radiation during service, service connection for a condition that is claimed to be attributable to such exposure may be established in one of three different ways. First, there are 15 types of cancer that are presumptively service-connected. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). Second, 38 C.F.R. § 3.311(b) provides a list of "radiogenic diseases" that will be service connected, provided that certain conditions specified in that regulation are met. Other "radiogenic" diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2), found 5 years or more after service in an ionizing radiation exposed veteran, may be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. Third, direct service connection can be established by showing that the disease was incurred during or aggravated by service. See Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. The Veteran is a "radiation-exposed veteran" as defined by 38 C.F.R. § 3.309(d)(3) because he participated in the occupation of Nagasaki, Japan, between August 6, 1945, and July 1, 1946. 38 C.F.R. § 3.309(d)(3)(ii)(B). Skin cancer is not among the cancers subject to service connection on a presumptive basis under 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). However, skin cancer is a radiogenic disease. 38 C.F.R. § 3.311(b)(2)(vii). As discussed above, the Veteran initially filed a claim for service connection for a skin rash, which was denied in July 1990. Evidence of record at that time revealed actinic keratosis of the chest. The Veteran filed a request to reopen his claim for a skin condition in September 1993, which was denied in November 1993. Evidence of record at that time revealed chronic dermatitis of the chest, actinic keratosis of the chest, and squamous cell carcinoma of the right temple. In March 1995, he filed a claim for service connection for melanoma and, in May 1995, he filed a request to reopen his claim for service connection for a chest rash. In an April 1996 rating decision, the RO found that the claim for service connection for actinic keratosis, claimed as melanoma, was not well grounded. The RO discussed that the Veteran was being treated for chronic skin problems diagnosed as actinic keratosis and/or active dermatitis, but there was no evidence that his actinic keratosis, claimed as skin cancer, was due to service, to include in-service radiation exposure. Evidence of record at that time revealed basal cell carcinoma of the left temple. Although notified of the April 1996 rating decision by letter in April 1996, the Veteran did not initiate an appeal; hence, that decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In addition, no new and material evidence was received within one year of the April 1996 rating decision. See 38 C.F.R. § 3.156(b). The Veteran sought to reopen his previously denied claim for service connection for skin cancer in January 2008. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claim is the April 1996 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Court has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA must not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead must examine and determine if it could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. The evidence of record at the time of the April 1996 rating decision included findings of actinic keratosis of the chest, chronic dermatitis of the chest, squamous cell carcinoma of the right temple, and basal cell carcinoma of the left temple. The RO denied service connection, stating that actinic keratosis and dermatitis are not among the disabilities which can be attributed to radiation exposure. At the time of the April 1996 rating decision, there was no medical evidence of skin cancer of the chest. Evidence associated with the claims file since the April 1996 rating decision includes an April 2010 VA pathology report reflecting squamous cell carcinoma of the anterior chest. This evidence, of a radiogenic disease, specifically, skin cancer of the chest, was not of record at the time of the April 1996 rating decision and raises a reasonable possibility of substantiating the claim for service connection. Thus, the evidence is new and material and the claim must be reopened. Therefore, as new and material evidence has been received, the claim for service connection for skin cancer is reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER New and material evidence having been received; the issue of entitlement to service connection for skin cancer, to include basal cell carcinoma of the left temple, right temple, and right forehead, and squamous cell carcinoma of the right temple and chest, to include as due to ionizing radiation exposure, is reopened. REMAND Review of the record reveals that further action on the claims remaining on appeal is warranted. As an initial matter, the record reflects that there are outstanding treatment records which are potentially pertinent to the claims on appeal. A June 1987 treatment record from the Miami Naval Hospital reflects that the Veteran's medical history was significant for radiation exposure in Nagasaki, and states that the Veteran was routinely followed through the VA system. In an April 1995 statement, the Veteran reported receiving treatment at the Miami VA Medical Center (VAMC) since 1969. In a June 2010 VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)), the Veteran reported treatment at the Miami VAMC and the San Juan VAMC from 1948 to the present. Treatment records from the Miami VAMC dated from March 1989 to October 1995, from January 2002 to November 2003, from May 2007 to July 2007, and from March 2008 to May 2010 have been associated with the claims file, and the Veteran has submitted records pertaining to his claimed cataracts, dated from January to September 2006. Treatment records from the San Juan VAMC, dated from June 2000 to June 2003, have also been associated with the claims file. The above communications from the Veteran reflect that additional treatment records from these facilities are available. As any additional records of VA treatment are potentially pertinent to the appeal and within the control of VA, they should be obtained and associated with the claims file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). A May 2007 VA treatment record indicates that the Veteran had a basal cell carcinoma of the right forehead incompletely excised in July 2006. The July 2006 pathology report is of record. Pathology reports from the Miami VAMC also reflect that a June 2006 biopsy of the right temple revealed basal cell carcinoma while November 2005 and December 2002 biopsies from the right arm revealed an irritated actinic keratosis and a hemangioma, respectively. A December 1996 biopsy of the right lower leg revealed basal cell carcinoma and a March 1996 biopsy of a chalazion revealed chronic granulomatous inflammation. While these pathology reports are of record, they indicate that additional treatment records from the Miami VAMC, dated between October 1995 and January 2002 and between November 2003 and May 2007 are available. Similarly, an April 2008 VA audiology examination notes that the Veteran's bilateral hearing loss, primarily in the high frequencies, was documented from 2005 to 2006, indicating that VA treatment records dated in 2005 are available. Further, a February 2010 VA treatment record indicates that the Veteran underwent left eye phacoemulsification/intraocular lens implantation on June 6, 2007; however, records of this procedure have not been associated with the claims file. Moreover, a November 2010 report of contact reflects that the Veteran failed to report for an October 2010 VA examination because he was hospitalized for his claimed condition at the Puerto Rico VAMC. On remand, the AMC/RO should ensure that all outstanding pertinent treatment records from both the Miami and the San Juan VAMCs are associated with the claims file or Virtual VA e-folder. Additionally, in an April 2003 statement, the Veteran stated that he had been under the care of the Navy from 1963 until the present, going to the Navy Hospital on Roosevelt Road in Ceiba, Puerto Rico. In a June 2003 VA Form 21-4142, the Veteran reported that, from 1964 to 1972 he had used the Naval Hospital in San Juan, which closed in 1972. In June 2003, the RO requested records from the Naval Hospital on Roosevelt Road in Ceiba, Puerto Rico; however, the RO only requested outpatient treatment records dated from May to October 2002. While treatment records from the Naval Hospital in Ceiba, dated in July and August 1987 have been associated with the claims file, the statements from the Veteran reflect that there are additional treatment records from this facility, as well as the Naval Hospital which was located in San Juan. On remand, the AMC/RO should obtain any outstanding pertinent treatment records from these facilities. See 38 C.F.R. § 3.159(c)(2) Regarding the reopened claim for service connection for skin cancer, in all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. § 3.307 or 38 C.F.R. § 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. 38 C.F.R. § 3.311(a)(1). When dose estimates provided are reported as a range of doses to which a veteran may have been exposed, exposure at the highest level of the dose range reported will be presumed. 38 C.F.R. § 3.311(a)(2). Further, when it has been determined that a veteran has been exposed to ionizing radiation in service, and he subsequently develops a potentially radiogenic disease, the claim will be referred to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311(b)(1). The Under Secretary is to consider the claim with reference to specified factors and may request an advisory medical opinion from the Under Secretary for Health. 38 C.F.R. § 3.311(c). If, after this consideration, the Under Secretary for Benefits determines that there is no reasonable possibility that the Veteran's disease resulted from radiation exposure in service, the Under Secretary for Benefits shall so inform the RO in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311(c)(ii). In this case, the RO requested a dose estimate from the Defense Threat Reduction Agency (DTRA) in October 2006. A dose estimate was provided in September 2007. In November 2007, the RO requested an opinion from the Compensation and Pension Service regarding the Veteran's claimed skin cancer, specifically, basal cell carcinoma of the left temple, the right lower leg, the right temple, and the right forehead, and squamous cell carcinoma of the right temple. In November 2007, the Chief Public Health and Environmental Hazards Officer opined that it was likely that the Veteran's basal cell carcinoma of the lower leg, but not the other individual skin cancers cited in the opinion request, could be attributed to exposure to ionizing radiation in service. Despite the foregoing opinion, the case has not been referred to the Under Secretary for benefits for further consideration as regards the Veteran's squamous cell carcinoma of the chest. This claim should be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). Regarding the claim for service connection for left eye cataracts, the November 2007 opinion request indicated that an opinion regarding cataracts was not being requested because the Veteran did not have a confirmed diagnosis of a posterior subcapsular cataract. However, a May 2007 VA treatment record reflects that slit lamp examination of the lens of the left eye revealed "1+ psc" reflecting a posterior subcapsular cataract. The pertinent impression was visually significant cataract of the left eye and the Veteran was referred for evaluation of cataract extraction. Posterior subcapsular cataracts are a radiogenic disease. 38 C.F.R. § 3.311(b)(2)(xvi). Thus, this claim should also be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). Additionally, the Board notes that the Veteran was afforded a VA examination to evaluate his claimed skin cancer of the chest in December 2010. The examiner opined that melanoma on the chest was less likely than not caused by or a result of radiation exposure shown during active duty. In providing a rationale for this opinion, the examiner stated that squamous cell carcinoma is a form of nonmelanoma skin cancer and it had been established that the Veteran was not exposed to a level of radiation during his active military service that could result in his developing skin cancer. Despite this opinion, the Board notes that the November 2007 opinion from the Chief Public Health and Environmental Hazards Officer indicates that the Veteran did develop a skin cancer, specifically, basal cell carcinoma of the lower leg, which could be attributed to his ionizing radiation exposure in service. Moreover, while the VA examiner addressed the relationship between the Veteran's squamous cell carcinoma of the chest and his in-service radiation exposure, he did not address whether the squamous cell carcinoma of the chest was otherwise related to service. Because VA undertook to provide a VA examination to evaluate the claimed skin cancer of the chest, the Board must ensure that such an examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). Accordingly, unless it is determined by the Under Secretary for Benefits that the Veteran's skin cancer of the chest is related to his in-service radiation exposure, the Veteran should be afforded a new VA examination to obtain a medical opinion as to whether he has skin cancer which is otherwise related to service. Regarding the claims for initial compensable ratings for basal cell carcinoma of the right lower leg and bilateral hearing loss, in her January 2013 IHP, the Veteran's representative asserted that each of these disabilities was worse since his last 2010 examination. The Board observes that these disabilities, were, in fact, last evaluated during VA examinations in May 2008 (regarding basal cell carcinoma of the right lower leg) and April 2008 (regarding bilateral hearing loss). In any event, the Veteran is entitled to a new VA examination where there is evidence (including his statements) that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); VAOPGCPREC 11-95 (1995). Accordingly, to ensure that the record reflects the current severity of basal cell carcinoma of the right lower leg and bilateral hearing loss, the Board finds that more contemporaneous examinations, responsive to the pertinent rating criteria, are needed. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey, 6 Vet. App. at 381 (an examination too remote for rating purposes cannot be considered contemporaneous). Finally, as noted in the introduction, in his August 2009 VA Form 9, the Veteran requested a local hearing before a hearing officer. The record does not reflect that the Veteran has withdrawn his request for a local hearing. He subsequently requested a hearing before a Veterans Law Judge at the RO (Travel Board hearing). A May 2012 letter advised the Veteran that he was scheduled for a Travel Board hearing in June 2012; however, the record reflects that he failed to report for that hearing. Instead, in a June 2012 letter, the Veteran's son stated that the Veteran was too frail to attend the hearing scheduled for June 2012 as it was too far from his home. He asked to be scheduled for a hearing in the Miami area. The Board, unfortunately, does not hold hearings in the Miami area. On remand, the AMC/RO should clarify whether the Veteran still desires an RO or Board hearing. 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. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for skin cancer, non-malignant thyroid nodular disease, cataracts, and/or hearing loss. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for treatment records from the Miami VAMC, dated (1) prior to March 1989; (2) between October 1995 and January 2002; (3) between November 2003 and May 2007; (4) between July 2007 and March 2008; and (5) since May 2010. These records specifically include treatment pertaining to the Veteran's claimed skin cancer in July 2006, June 2006, November 2005, December 2002, December 1996, and March 1996; records pertaining to the Veteran's hearing loss dated in 2005 and 2006; and records regarding left eye phacoemulsification/intraocular lens implantation on June 6, 2007. A specific request should also be made for treatment records from the San Juan VAMC, dated prior to June 2000 and since June 2003, to specifically include records regarding hospitalization in October 2010. The AMC/RO should also take necessary action to associate with the claims file all treatment records from the Naval Hospital in Ceiba, Puerto Rico, dated since 1963, and all treatment records from the Naval Hospital in San Juan, Puerto Rico, dated between 1964 and 1972. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Refer the Veteran's claims of entitlement to service connection for skin cancer of the chest and left eye cataracts, to include as due to ionizing radiation exposure, to the Under Secretary for Benefits for an opinion in accordance with 38 C.F.R. § 3.311(c). 3. Unless the Under Secretary for Benefits determines that sound scientific and medical evidence supports the conclusion that it is at least as likely as not that the Veteran's skin cancer of the chest resulted from radiation exposure in service, the Veteran should be afforded a new VA examination to obtain a medical opinion regarding the etiology of his skin cancer. All indicated tests and studies are to be performed. In conjunction with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Following examination of the Veteran and a review of the record, the examiner should identify any current skin cancer, to include basal cell carcinoma of the left temple, right temple, and right forehead, and squamous cell carcinoma of the right temple and chest. In regard to any diagnosed skin cancer, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current condition had its clinical onset during active service or is related to any in-service disease, event, or injury, to include in-service radiation exposure. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. After all available records have been associated with the claims file or Virtual VA e-folder, arrange for the Veteran to undergo VA examination to evaluate the service-connected basal cell carcinoma of the right lower leg. In conjunction with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should perform all indicated tests and studies. The examiner should provide a description of Veteran's scar on right lower leg resulting from his basal cell carcinoma removal. Description of the scar should include the size and location, and whether it is superficial (not associated with underlying soft tissue damage) or deep (associated with underlying soft tissue damage); causes limitation of motion; is unstable (has frequent loss of covering of skin over the scar); and/or is painful on examination. The examiner should also indicate whether the scar causes any limitation of function. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 5. After all available records have been associated with the claims file, arrange for the Veteran to undergo VA examination, by a state-licensed audiologist, to evaluate the service-connected bilateral hearing loss. In conjunction with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should perform all indicated tests and studies. At a minimum, the examination must include a puretone audiometry test and a controlled speech discrimination test using the Maryland CNC word list, unless the examiner certifies that use of a speech discrimination test is not appropriate and provides a supporting rationale. The examiner should also address any functional impairment resulting from the Veteran's hearing loss and its effects on his ordinary activities. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 6. After the above development has been completed, contact the Veteran and ask him to clarify whether he wishes to testify before a hearing officer at the RO or before a Veterans Law Judge at the RO (either in person or via videoconference). The Veteran's wishes with regard to a hearing must be documented, in writing, in the claims file or Virtual VA e-folder. 7. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 8. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate each claim on appeal in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs