Citation Nr: 1325170 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 11-16 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for skin cancer, to include as due to sun exposure and/or ionizing radiation exposure. 2. Entitlement to service connection for residuals of cold injuries of the bilateral feet. REPRESENTATION Veteran represented by: Marine Corps League ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1949 to August 1952, including service in Korea. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that denied service connection for skin cancers and cold injury of the feet. The Veteran initially asked to be scheduled for a Travel Board personal hearing. However, in a subsequent communication received in September 2011, he withdrew his request for a Board hearing. See 38 C.F.R. § 20.704(e) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Veteran alleges that his skin cancer is due to in-service sun exposure and/or exposure to ionizing radiation. Specifically, he claims that he suffered facial sunburn while serving on guard duty in Korea and that he was exposed to ionizing radiation while serving near x-ray machines as an operating room technician. He also alleges that his current foot symptoms are the result of frostbite or cold feet that he experienced while serving on guard duty in Korea. A review of the Veteran's private and VA treatment records indicates that he has been treated for skin cancer and precancerous skin lesions. Diagnoses of frostbite to foot, chilblains, idiopathic neuropathy, and late effects of a previous cold weather injury are also of record. Additionally, the Board notes that the Veteran is competent to report having experienced sunburn and cold feet in service. In light of the competent lay evidence relating to sunburns and cold exposure in service, post-service medical evidence of skin cancer and cold injury residuals, and the Veteran's report that his skin cancer and cold injury residuals are related to his sun and cold exposures while on active duty service, the Board finds that examinations and medical nexus opinions are necessary in order to properly resolve these claims. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2009); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the United States Court of Appeals for Veterans Claims (Court) explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claims of entitlement to service connection for skin cancer and residuals of cold injuries of the feet must be remanded for VA examinations and nexus opinions. Alternatively, the Veteran claims that his skin cancer is the result of exposure to ionizing radiation while serving near x-ray machines. His DD-214 shows a military occupational specialty of operating room technician, which is consistent with his claim. However, the RO has not developed his ionizing radiation claim or attempted to verify whether he was exposed to any ionizing radiation in service. On remand, the AMC should attempt to obtain any information regarding the Veteran's possible in-service radiation exposure. 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. Undertake any necessary development to verify the Veteran's alleged in-service occupational radiation exposure, including contacting the U.S. Army Dosimetry Center or other appropriate agency. Emphasis should be directed to the Veteran's assertion that he was exposed to ionizing during the course of serving as operating room technician. Any additional action necessary for verification of in-service radiation exposure, including follow-up action requested by the contacted entity, should be accomplished. If the search for corroborating information leads to negative results, the AMC should notify the Veteran and his representative of this fact, explain the efforts taken to obtain this information and describe any further action to be taken. This must be noted in the claims file. 2. Thereafter, schedule the Veteran for a VA examination(s) with appropriate examiner(s) to determine the nature and etiology of his skin cancer and cold injury residuals. The examiner(s) must review pertinent documents in the Veteran's claims file in conjunction with the examination. The examiner(s) should also obtain a full history from the Veteran as to in-service and post-service sun exposure and cold exposure. This also must be noted in the examination report. With regard to the Veteran's skin, the examiner must state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's skin cancer or any other skin disorder had its onset in service or was otherwise caused by his active service, to include in-service sun exposure (sunburns) and/or any radiation exposure verified by the AMC. With regard to the Veteran's residuals of a cold injury, the examiner should identify and diagnose all disabilities of the feet, to include those that may have resolved during the appeals process. For each diagnosed disability of the feet the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the disability had its onset in service or is otherwise etiologically related to his active, to include in-service cold exposure. Reference should be made to the December 2009 private podiatry note that diagnosed frostbite of the feet, chilblains, idiopathic neuropathy, and late effects of a previous cold weather injury. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above actions and any other notification or development deemed necessary, the Veteran's claims of entitlement to service connection for skin cancer, to include as due to sun exposure and/or ionizing radiation exposure, and residuals of cold injuries of the bilateral feet should be readjudicated. If either of the claims remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, all issue(s) properly on appeal should be returned to the Board for further appellate review. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).