Citation Nr: 1325815 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 10-15 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a skin disability, to include as due to exposure to herbicides and/or sunlight. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, on behalf of the VARO in Detroit, Michigan. In May 2013, the Veteran presented testimony in support of his claim at a Travel Board hearing conducted by the undersigned Veterans Law Judge (VLJ). A transcript of the hearing testimony is in the claims file. After the May 2013 hearing, additional evidence has been associated with the Veteran's claims file accompanied by a waiver of local consideration. This waiver is contained in the Veteran's VA claims file. 38 C.F.R. §§ 19.9, 20.1304(c) (2013). Characterization of the issue on appeal In May 2008, the Veteran filed claims to establish service connection for multiple skin disabilities, to include squamous cell carcinoma, basal cell carcinoma, and melanoma, affecting various parts of his body. Throughout the pendency of his appeal, the Veteran has asserted that these skin disabilities are the result of exposure to herbicides while serving in the Republic of Vietnam. At the May 2013 hearing, the Veteran asserted that, in the alternative, his skin disabilities may be the result of in-service exposure to sunlight, resulting in sunburn. (See the May 2013 hearing transcript at pages 2-4 and 6-9.) The United States Court of Appeals for Veterans Claims (the Court) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons, the varying skin diagnoses of record, and the Veteran's assertions at the May 2013 hearing, the Board has expanded and recharacterized the issue on appeal as stated on the title page. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. 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 The record reflects that the Veteran has an extensive history of multiple, diagnosed skin disabilities, to include squamous cell carcinoma, basal cell carcinoma, and melanoma, affecting various parts of his body, including his face, ears, back, arms, and legs. The Board notes the Veteran's competent testimony that he incurred in-service exposure to sunlight, resulting in sunburn on his face, ears, back, arms, and legs. Also, the record reflects that the Veteran served in the Republic of Vietnam, and thus, in-service exposure to herbicides is presumed. Although the Veteran has not been diagnosed with a skin disability for which service connection may be presumed under VA regulations pertaining to herbicide exposure, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The record includes three nexus opinions addressing the etiology of the Veteran's various skin disabilities: the January 2009 VA examiner's opinion which is unfavorable to the Veteran's claim, and May 2013 opinions from Drs. Busuito and Lerchin which are favorable to the Veteran's claim. However, neither the January 2009 VA examiner nor the two private clinicians offered any rationale for their stated opinions, and thus, the opinions are inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, the Board notes that there is no evidence of record addressing the possible relationship between the Veteran's diagnosed skin disabilities and his in-service exposure to sunlight, resulting in sunburn. In light of above as well as the evidence that the Veteran has been diagnosed with several recurrences of skin cancers since the January 2009 VA examination, the Board concludes that the Veteran should be provided another VA examination in connection with his claim, and an adequate opinion addressing the etiology of the Veteran's skin disabilities must be obtained in order for VA to fulfill its duty to assist the Veteran in substantiating his claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA dermatology examination by an appropriate clinician to determine the current nature and etiology of any skin disability present during the appeal period. The claims file and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file. The examination is to include a review of the Veteran's history and current complaints, as well as a comprehensive evaluation of his skin disabilities, and any tests deemed necessary. Thereafter, the VA examiner must address the following: a) Identify all skin disabilities, to include the affected body parts, which have been present since the Veteran filed his claim in May 2008. b) For each skin disability identified in part (a), provide an opinion addressing whether it is it at least as likely as not (a 50 percent or greater probability) that such is a result of the Veteran's presumed in-service exposure to herbicides. c) For each skin disability identified in part (a), provide an opinion addressing whether it is it at least as likely as not (a 50 percent or greater probability) that such is a result of the Veteran's service, to include in-service exposure to sunlight, resulting in sunburn affecting various parts of his body. All opinions offered must be accompanied by a complete rationale. If the examiner cannot provide any of the requested opinions without resorting to mere speculation, such should be stated along with rationale for that conclusion. 2. The Veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. 38 C.F.R. § 3.655 (2012). 3. Thereafter, readjudicate the issue on appeal, considering all evidence of record. If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. The case should be returned to the Board, as warranted. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ U. R. POWELL 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).