Citation Nr: 1308675 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 08-00 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for skin disorders, to include basal cell carcinoma, melanoma, actinic keratosis, and dermatitis. 2. Entitlement to service connection for a respiratory disorder. REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from April 1960 to May 1962, with additional Reserves service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The claim is now properly before the RO in Chicago, Illinois. The Veteran appeared and testified at a personal hearing in April 2011 before the undersigned and a copy of the transcript is contained in the record. This appeal was previously before the Board in September 2011. The Board denied the claim of entitlement to service connection for a skin disorder, to include basal cell carcinoma and melanoma, and remanded the claim of entitlement to service connection for a respiratory disorder so that the Veteran could be scheduled for a VA examination. In May 2012 the Board's denial was set aside by the United States Court of Appeals for Veterans Claims (Court) via a Joint Motion for Remand. The case has been returned to the Board for further consideration. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. 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 Unfortunately, a remand is required in regards to the Veteran's claims. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met. Skin Disorders Treatment records in the claims file show that the Veteran's medical history includes diagnoses of: basal cell carcinoma, melanoma, eczema, squamous cell carcinoma, actinic keratosis, contact dermatitis, nummular dermatitis, and various rashes. He contends that his skin cancers, and possibly his other skin disorders, are the result of either (1) sun exposure in service, or (2) exposure to mustard gas, radiation, anthrax, and other chemical and biological agents. The Veteran has testified that during his period of active service from April 1960 to May 1962 he suffered numerous sunburns. He indicates that he was stationed in Texas, and that he spent a majority of his service running field exercises. He described having sunburns which resulted in pealing on more than one occasion. He stated that as a child he had also had at least one sunburn that resulted in pealing skin. The record contains a Certificate of Achievement for the Veteran's role in an Intensified Combat Training Program, which included participating in extensive field training from October 1961 to May 1962. Additionally, the Veteran has stated that he participated in a four-week course with the U.S. Army Chemical Corps which exposed him to mustard gas, radiation, anthrax and other substances. He provided a completion certificate which notes he completed subjects including: biological warfare, chemical warfare, radiological warfare, protection and material, operations, training, and intelligence. He also provided a photo of the Second CBR Officer Class of the U.S. Army Chemical School, including himself, and noted that the picture was taken between October and November 1960. The Veteran has stated that as a part of the Chemical School, he was exposed to mustard gas on his left arm. He has stated that the liquid was pricked into his skin, dropped on his skin, and splashed onto his skin. He believes he was exposed to radiation because he was around machinery and items that were exposed to radiation; however, he noted that he wore protective clothing and "badges" during examination of the items. He also stated he was exposed to "anthrax spores used on a goat which was brought back to life by an antidote." The VA attempted to verify the Veteran's statements regarding his exposure to warfare agents and radiation. In July 2005, the U.S. Army Medical Research Institute of Chemical Defense at Fort Detrick noted that there were unable to find records of mustard gas exposure for the Veteran. The RO also forwarded information to VA's Compensation and Pension Service for a review of Department of Defense (DOD) records for mustard gas exposure; however, no records to verify participation in chemical testing were found. In November 2005, the RO contacted the U.S. Army Radiation Standards and Dosimetry Laboratory for evidence of any exposure to ionizing radiation, but no records were found. Also in November 2005, the RO requested the Veteran's Form DD 1141 and any record of exposure to radiation, but no records were found. In March 2006, the DOD noted the Veteran had attended the four-week CBR courses at Fort McClellan and that "[n]ormally, during CBR courses individuals were administered the three drop test as part of training. Nothing in his records indicated that he participated in chemical testing. Service member cannot be considered as being exposed to CW [chemical warfare] agents." Service treatment records include treatment for pruritus and tinea corporis in September 1960. There is no indication of treatment for sunburns or other skin conditions in service. In this regard, the Veteran testified that he did not seek treatment for his sunburns, or any other skin disorders. A VA skin disorders examination provided in March 2010 did not address the Veteran's contention that his skin disorders may be due to in-service sun exposure. Additionally, the examiner only addressed the Veteran's residual of nummular dermatitis that were present during the examination. A "current" diagnosis, for VA purposes, includes any diagnosis since the claim was filed in 2005, which would include a diagnosis of squamous cell carcinoma. Additionally, if the Veteran has any residuals of basal cell carcinoma or melanoma, to include scars, those could also be service-connected even if the Veteran is currently cancer-free. As such, the March 2010 VA examination is inadequate and an additional VA skin disorders/scar examination is necessary. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (noting that a medical opinion "is adequate where it is based upon consideration of the veteran's prior medical history and examination and also describes the disability, if any, in sufficient detail so that the Boards 'evaluation of the claimed disability will be a fully informed one.'" (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The Board also notes that the examiner must consider lay statements regarding in-service occurrence of an injury. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that an examination was inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). Regarding the Veteran's statements, the Board finds his contention that he was exposed to the sun during his field training in-service as credible and fitting with his duties. As to his statements that he was exposed to mustard gas, the Board will resolve reasonable doubt in the Veteran's favor and find that he was exposed to drops of liquid mustard gas on his left arm. In this regard, the Board notes that while the RO's attempts to determine if he was exposed to mustard gas show that he is not on a list of individuals who were tested, he did participate in CBR training, and a DOD official has indicated that mustard gas drop tests were performed on some individuals during that training. With regard to his statements that he was exposed to radiation, the Board finds that the Veteran was not exposed to radiation. He described being around items which were exposed to radiation while wearing a protective suit, and the RO's attempts to determine if he was exposed to radiation through normal channels returned negative responses. Lastly, the Board held the record open for 30 days after the April 2011 hearing so that the Veteran could attempt to obtain and submit additional evidence-to include treatment records from Drs. Foellner and Cunningham, records from a hospital in Illinois, and employment examination records from the University of Illinois. It does not appear the Veteran submitted any additional records after the hearing. On remand, he should be given an additional opportunity to submit records or request help in obtaining records. Respiratory Disorder In September 2011, the Board remanded the Veteran's claim of entitlement to service connection for a respiratory disorder for a VA examination and to readjudicate the claim. He was subsequently afforded a VA examination in October 2011. The RO has not yet issued a Supplemental Statement of the Case (SSOC) as the Remand directed. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As such, on remand the RO must issue an SSOC for the Veteran's respiratory disorder claim. Accordingly, the case is REMANDED for the following actions: (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. The RO should contact the Veteran and obtain the names and addresses of all medical care providers, VA and non-VA that treated him for his skin disorders since service. Of particular interest are records from treatment prior to 1989, outstanding treatment records noted in the Board hearing from Drs. Foellner and Cunningham, and employment examination records from the University of Illinois. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. After any records are obtained, the Veteran should be scheduled for VA skin and scar examinations to determine the nature and etiology of any current skin disorders (here, "current" means any skin disorder which has been present since 2005 when the claim was filed) and any residuals of claimed skin disorders (to include scars from the removal of cancer). The claims folder, including a copy of this remand, must be made available to the examiner, and the examiner must indicate on the examination report that he reviewed the claims folder in conjunction with the evaluation. For each identified skin disorder, the examiner should provide opinions as to whether it is at least as likely as not (a 50/50 probability or greater) the skin disorder was caused by or developed as a result of his active service. The examiner should address the Veteran's in-service sun exposure and in-service exposure to liquid mustard gas on his left arm. In providing nexus opinions, the examiner should consider whether the Veteran's exposure to sun and mustard gas resulted in any of his diagnosed skin disorders. All indicated tests and studies should be performed. The examiner should elicit a full history of sun exposure from the Veteran. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Note that the SSOC should include readjudication of the issue of entitlement to service connection for a respiratory disorder, unless the RO grants that issue. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ LANA K. JENG 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).