Citation Nr: 1329349 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-13 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for malignant melanoma, claimed as due to ultra-violet radiation exposure. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1954 to December 1956. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In December 2012, the Board remanded this issue for a hearing before the Board, which was conducted in May 2013. Regrettably, another remand is needed. 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 The Veteran is seeking service connection for malignant melanoma. Throughout his appeal, he has consistently related his melanoma, or skin cancer, to sun exposure he received during his service while working as a life guard. He reported he was not provided with protection from the sun during his time as a lifeguard and received several sunburns. The record includes credible lay statements that the Veteran worked as a life guard during service and was exposed to the sun, as well as medical evidence of a diagnosis of malignant melanoma. The record also contains letters from at least two different private physicians asserting that the Veteran's current condition is due to prolonged sun exposure. However, the evidence does not include any medical opinion as to whether the Veteran's current skin cancer is due to prolonged sun exposure he received during service or thereafter and he was not provided with a VA examination. As such the Board finds remand is required to provide a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Board notes the record also contains VA treatment records through July 2013 which have not yet been considered by the RO. As the Veteran was not waived RO consideration of these records, these updated VA treatment records must also be initially considered by the RO upon remand. 38 C.F.R. § 20.1304(c). 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. Schedule the Veteran for an examination to determine the nature and etiology of his current skin cancer, to include malignant melanoma. The claims folder must be made available to the examiner for review in conjunction with the examination. Any required tests and studies must be accomplished, and clinical findings must be reported in detail and correlate to a specific diagnosis. For purposes of the opinion, the examiner is asked to accept that the Veteran has a history of in-service sun exposure as a life guard. The examiner should provide an opinion as to the following question: * Is it as likely as not (50 percent or greater) that the Veteran's current skin cancer condition was caused by his exposure to the sun during his active service? The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided. 2. Then, readjudicate the appeal, including consideration of the updated VA treatment records through July 2013. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). _________________________________________________ L. HOWELL 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).