Citation Nr: 1310306 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 11-23 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for Hodgkin's lymphoma, to include as secondary to radiation exposure. 2. Entitlement to service connection for a skin disability, to include as secondary to radiation exposure. REPRESENTATION Appellant represented by: Larry Stokes, Agent ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from January 1955 to September 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims of entitlement to service connection for Hodgkin's lymphoma, to include as secondary to radiation exposure, and service connection for a skin disability. The Veteran had been previously represented by the American Legion. However, in September 2012, he submitted a VA Form 21-22a, Appointment of Attorney or Agent as Claimant's Representative, in favor of the agent listed on the title page herein. The Veteran and his agent were informed, by a February 2013 letter, that while the American Legion filed an October 2012 brief; to date, no argument had been submitted by the agent on the Veteran's behalf. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND Additional development is needed prior to further disposition of the claims. As a preliminary matter, the Board notes that by a March 2009 VA Form 21-4142, Authorization and Consent to Release Information to VA, now outdated, the Veteran identified Dr. Nguyen as a potential source of relevant private records as to his claim of entitlement to service connection for Hodgkin's lymphoma. While the RO requested such records in May 2009 and July 2009, Dr. Nguyen has not submitted any records. The Veteran was informed of such at the time of the August 2011 Statement of the Case. On remand, however, the Veteran should be provided an opportunity to submit an updated VA Form 21-4142 to allow VA to make a final attempt to obtain and associate with the claims file Dr. Nguyen's records. As to the Veteran's claim of entitlement to service connection for Hodgkin's lymphoma, to include as secondary to radiation exposure, private treatment records dated in March 2009 indicate that the Veteran presented with a history of adenopathy in the right groin area and reported that he remembered feeling something in that area while in the military. The physician noted that recent biopsy revealed a nodular lymphocytic predominant Hodgkin's lymphoma. Service treatment records (STRs) dated in January 1960 indicate that the Veteran was diagnosed with epididymitis, acute, non-venereal, cause unknown, after complaints of urethral discharge. The Veteran's film badge records are associated with the claims file. The Defense Threat Reduction Agency submitted a statement in May 2010, indicating that the Veteran was indeed assigned to Operation Red Wing and his film badges, despite one being lost, indicated a total recorded dose of 3.945 rem gamma. The Veteran's Hodgkin's lymphoma is not a certain type of cancer presumptively service connected for radiation-exposed Veterans. 38 C.F.R. § 3.309(d) (2012). Such is also not included in the list of "radiogenic diseases" which will be service connected provided that certain conditions are met. 38 C.F.R. § 3.311(b) (2012). In this regard, while such regulation includes "any other cancer," it also specifically excludes Hodgkin's disease. However, direct service connection can be established for a disorder claimed to be a result of exposure to ionizing radiation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To date, no examiner has been asked to opine as to whether the Veteran's Hodgkin's lymphoma was incurred in or aggravated by his active service, specifically, his exposure to radiation or his in-service epididymitis. Such an opinion should be obtained on remand. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); Robinette v. Brown, 8 Vet. App. 69 (1995). As to the Veteran's claim of entitlement to service connection for a skin disability, the Board notes that such was adjudicated by the RO considering the Veteran's assertions that his current skin disability was related to his in-service skin complaints. The RO did not consider the Veteran's assertions that his skin disability was related to his in-service radiation exposure. In his July 2010 Notice of Disagreement, the Veteran asserted that his skin disorder, characterized by spots and rashes on the body, is related to active service. He cited the internet article regarding dyshidrotic dermatitis on the hands that he submitted and questioned how a condition such as dyshidrotic dermatitis could not be aggravated by his exposure to radiation. Thus, it is clear that the Veteran asserts, as an alternate theory of entitlement, that his current skin disability is related to his in-service radiation exposure. His STRs reveal that in June 1955, he was treated with lotion for a rash on his face. In September 1966, he was treated for acute dermatophytosis of the feet. On physical examination in December 1967, he presented with a history of dyshydrosis, not requiring treatment and not clinically significant. He was diagnosed with mild dyshydrosis of the palms. In October 1971, he complained of mild scaling on his palms, and the treatment provider reported that such was probably dyshydrosis. On physical examination in November 1971, he presented with mild scaling in the palms, with rare vesicle seen. Report of medical history at that time indicates that the Veteran reported a history of skin disease, and the examiner noted a history of peeling of the skin on hands since 1967, not requiring treatment and not clinically significant. In July 2011, a VA examiner diagnosed the Veteran with dermatitis and opined that such was less likely than not incurred in or caused by the claimed in-service event. The examiner reasoned that the skin problems evidenced during service have different characteristics than his current skin disability. The examiner did not render an etiological opinion as to the Veteran's in-service exposure to radiation and his current skin disability. The opinion is thus incomplete. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board has no discretion and must remand the claim for an additional opinion. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and inform him that his March 2009 VA Form 21-4142, Authorization and Consent to Release Information to VA, for Dr. Nguyen is outdated and that to date, records from Dr. Nguyen have not been received. Inform him that if he desires VA to make a final attempt to obtain and associate such records with the claims file, he should submit an updated authorization. Advise the Veteran that he may submit his private treatment records if he so chooses. If a negative response is received from the Veteran, or any private treatment provider, the claims file should be properly documented in this regard. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of his Hodgkin's lymphoma. The examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's Hodgkin's lymphoma was incurred in service, or is otherwise related to service, or dates back to service, specifically considering his in-service treatment for epididymitis and his exposure to radiation. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of his skin disability. The examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's skin disability was incurred in service, or is otherwise related to service, or dates back to service, specifically considering his in-service treatment for skin complaints and his exposure to radiation. The examiners should consider that the Veteran's total recorded dose was 3.945 rem gamma, and one badge was missing and thus not included in the total dose estimate. In this regard, the examiners should consider the Veteran's statements regarding his in-service right groin and skin complaints, and his statements of symptoms after service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the STRs to provide a negative opinion). The claims file, to include a copy of this Remand, should be made available to the examiners for review in conjunction with the opinion or examination, and the examiners should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. If the requested opinions cannot be provided without resorting to mere speculation, the examiners should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The examiners should fully articulate a sound reasoning for all conclusions made. The claims file must be properly documented regarding any notifications to the Veteran as to the scheduled examinations. 4. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claims considering any additional evidence added to the record. If any action remains adverse to the Veteran, provide the Veteran and his agent with a Supplemental Statement of the Case and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examinations requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by not attending any requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ S. L. Kennedy 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).