Citation Nr: 1327347 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-10 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a skin disability to include skin cancer and actinic keratosis. 2. Entitlement to an effective date earlier than June 10, 2013 for the award of a 10 percent rating for the service-connected lumbar strain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to June 1969, including service in Vietnam. The Veteran is in receipt of the Combat Infantryman Badge (CIB). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for skin cancer. The case was previously before the Board in May 2013 when it was remanded for additional development. With respect to the issue of entitlement to service connection for lumbar strain, a June 2013 rating decision granted service connection for this disability, assigning a noncompensable rating effective February 17, 2009 and a 10 percent rating from June 10, 2013. In July 2013 correspondence, the Veteran disagreed with the effective date assigned for the 10 percent rating. For the reasons explained below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on his part. REMAND While further delay is regrettable, the Board finds that additional development is necessary. The skin cancer claim was remanded in May 2013, in part, for the Veteran to undergo a VA examination to obtain a medical opinion concerning his claim. An examination was conducted in June 2013, and an opinion was obtained regarding the relationship between Agent Orange exposure and his skin cancer/actinic keratoses. However, no opinion was provided regarding the relationship between the Veteran's sun exposure during service and his skin cancer/actinic keratoses. Thus, an addendum opinion should be sought on remand. During his June 2013 VA examination the Veteran reported that he receives treatment by a private dermatologist. Such records must be requested on remand. As noted above, service connection for lumbar strain was granted in a June 2013 rating decision with a noncompensable rating assigned effective February 17, 2009 and a 10 percent rating from June 10, 2013. The Veteran's July 2013 correspondence requested that the 10 percent rating go back to the date of service connection and can reasonably be construed as disagreeing with the effective date assigned for the 10 percent rating. Accordingly, the Board is required to remand this issue to the RO for the issuance of a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO has issued the SOC, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran provide a fully completed release form for Dr. J. Donnelly and Dr. Portnoff, and any other treatment providers who have treated him for his skin cancer and actinic keratoses at any time, so that records from these providers can be requested. After securing the necessary release, the RO/AMC should request all relevant records identified. If any requested records cannot be obtained, the Veteran should be notified of such. 2. After the development requested above has been completed and the records associated with the file to the extent possible, the claims file should be returned to the June 2013 skin examiner to obtain an addendum opinion. If that examiner is not available, the claims file should be forwarded to another physician for review and to obtain the requested opinion. If an additional examination is deemed necessary, one should be scheduled. Following review of the claims file the examiner should respond to the following questions: a. Is it more likely (greater than 50% probability), less likely (less than 50% probability) or at least as likely as not (50/50 probability) that the Veteran's current skin cancer and/or actinic keratosis of the scalp and face are etiologically related to sun exposure without sun block during his approximately 3 years of service versus the pre- and post-service years of sun exposure. The examiner should explain the reasoning for the conclusion provided. The term, "as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the examiner's conclusion as it is to find against it. "More likely" and "as likely as not" are opinions in support of service connection; "less likely" or "unlikely" are opinions against service connection. b. If the private treatment records requested in directive # 1 above are obtained, the examiner should be asked whether review of such records changes his prior opinion that it is less likely than not that the Veteran's skin disorders are related to Agent Orange exposure in Vietnam. The examiner should explain why or why not. c. If the examiner cannot provide the above opinions without resorting to speculation, the examiner should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. Thereafter, the claim for service connection for skin cancer to include actinic keratoses should be readjudicated. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. This issue should then be returned to the Board for further appellate consideration, if in order. 4. The Veteran and his representative should be provided a Statement of the Case on the issue of entitlement to an effective date earlier than June 10, 2013 for the award of a 10 percent rating for the service-connected lumbar strain, so that the Veteran may have the opportunity to complete an appeal on this issue (if he so desires) by filing a timely substantive appeal. The issue should only be returned to the Board if a timely substantive appeal is filed. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ K.A. BANFIELD 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).