Citation Nr: 1329481 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 11-27 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a skin disorder, to include as due to ionizing radiation. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARINGS ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1955 to January 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota which, in part, denied service connection for rosacea. 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). A videoconference hearing was held in February 2013 before the undersigned who is rendering the determination in this case. The Veteran also offered testimony in October 2009 before a Decision Review Officer (DRO). Transcripts of both hearings are in the claims file. In March 2013, the Board remanded the Veteran's claim for additional evidentiary development. The Board specifically instructed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a VA examination to determine the nature and etiology of his current rosacea, and specifically to determine whether the Veteran had rosacea that is causally or etiologically related to service, to include his exposure to ionizing radiation. Unfortunately, the additional medical opinion obtained on remand is still inadequate. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Although the Board sincerely regrets further delay, another remand is essential to ensure that the Board remand instructions are complied with and carried out prior to a final adjudication of the claim. Lastly, the Board observes that the issue on appeal as certified to the Board was entitlement to service connection for rosacea. However, in light of the Veteran's testimony at the February 2013 hearing, the issue has since been broadened to entitlement to service connection for a skin disorder, as reflected above. For the following reasons, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran contends that he developed rosacea as a result of his exposure to ionizing radiation in service. See February 2013 Hearing Transcript (T.), p. 3. The records reflect that the Veteran was exposed to ionizing radiation as a participant of Operation HARDTACK I while serving aboard the U.S.S. Boxer in 1958. See February 2005 letter from the Defense Threat Reduction Agency (DTRA). During his hearing, the Veteran testified that he first discovered signs of skin problems sometime during the 1960s. See T. at 3. The Veteran is currently service-connected for basal cell carcinoma of the nose, right jaw, below right ear and scalp, as well as squamous cell carcinoma of the scalp. See April 2005 and September 2007 rating decisions. The Veteran was afforded a VA skin examination in August 2008, at which time he provided his history and reported to have had multiple skin cancers removed from his scalp, face and right ear. On examination, the examiner evaluated and described the size, texture and appearance of the Veteran's scars. She (the examiner) also noted that the Veteran had telangiectasis on both cheeks with signs of erythema. In addition, she observed that the Veteran had rosacea that affects less than one percent of his total surface area and less than five percent of his exposed area. Based on her evaluation of the Veteran, she diagnosed him with having rosacea to the cheeks which causes his burning sensation. During a February 2011 primary care visit, the Veteran presented with signs of soft tissue swelling on the right cheek just below the right eye. On examination, the treatment provider noted that the Veteran had extensive skin changes which "could be compatible with radiation damage." At a subsequent VA treatment visit also dated in February 2011, the VA physician noted that the Veteran had some edema of his facial skin, to include his cheeks and nose, and commented that the Veteran felt as though his skin was burning when he touched these areas. Pursuant to the March 2013 Board remand, the Veteran was afforded a VA examination in April 2013, at which time the examiner evaluated the Veteran and noted that he had diagnoses of squamous cell carcinoma, basal cell carcinoma and actinic keratosis. Upon reviewing the Veteran's medical history, the examiner noted that the Veteran developed rosacea on his cheeks in the mid 60s. Based on his review of the medical literature, the examiner could find nothing to suggest that rosacea was caused by ionizing radiation. With regard to whether the Veteran's rosacea was due to his in-service exposure to solar radiation, the examiner cited to medical literature from the National Institute of Health, which read that "[t]he general consensus among clinicians is that rosacea is a photoaggravated disorder" and that "[p]athophysiologic processes induced by UV [ultraviolet] radiation, which are processes similar to those seen in photoaging, contribute to the signs and symptoms of rosacea" The examiner also quoted another medical literature article which indicated that "[r]osacea risk factors include fair skin, English, Irish or Scottish heredity, easy blushing, and having other family members with rosacea." The examiner concluded that there was a "clear genetic disposition to rosacea which was likely aggravated by the solar radiation [the Veteran] experienced in service" and that the extent of the aggravation was speculative. The Board finds this opinion to be unclear for several reasons. First of all, the examiner did not discuss which factors in the Veteran's history led there to be a predisposition to rosacea. The Veteran did not report to be of English, Irish or Scottish ancestry, and in fact, testified that his mother had been Native American. See T, p. 7. In addition, the Veteran did not report to have a family history of rosacea. As such, the Board is unclear as to how the VA examiner determined that the Veteran had a "genetic disposition to rosacea." Furthermore, the examination report is vague as to whether the examiner conducted a physical evaluation of the Veteran prior to determining the nature of his current skin disabilities. While the examiner noted that the evaluation was based on an in-person examination of the Veteran as well as a review of the VA claims folder, it is unclear whether the examiner arrived at a conclusion through a physical assessment of the Veteran, or simply through a review of the Veteran's medical records. Indeed, pictures taken of the Veteran on the day of the VA examination revealed red rash-like patches on his cheeks and face. However, the examiner did not provide a description of these patches, nor did he provide an assessment of the nature of these patches in the physical examination section. Instead, when asked to indicate the Veteran's visible skin conditions, the examiner simply marked that the Veteran did not have "any of the above listed visible skin conditions." The Board finds this to be unlikely in light of the pictures provided. Although the examiner still provided a medical opinion concerning the etiology of the Veteran's rosacea, the Board finds that the Veteran should undergo another physical examination to ensure that any skin condition he may have is thoroughly evaluated, and that he does not have any other skin disorder, in addition to rosacea, which may be attributed to his in-service exposure to ionizing and/or solar radiation. The Board also finds the April 2013 medical opinion to be inadequate to the extent that the statement that the Veteran's "disposition" for rosacea was aggravated by his in-service solar radiation, still leaves to Board to question whether the Veteran's in-service exposure to solar radiation caused or contributed to the development of his current rosacea. By using the term 'aggravated,' the examiner, in a sense, makes it appear as though the Veteran had a pre-existing skin condition that worsened in service. In this case, however, the Veteran's service records are silent for any reference to skin disorders at service entrance, or for any skin problems in service that were thought to exist prior to service. Consequently, the presumption of soundness applies, and reference to "aggravation" was inappropriate. The Board notes that in an April 2013 opinion, the Veteran's family physician, J.L, M.D., noted that he had treated the Veteran throughout the years due to his radiation-induced skin cancers and damage. He also noted that the Veteran continued to experience a recurrent outbreak of lesions surrounding his scalp, arms and face throughout the years. According to Dr. L., in light of the Veteran's records indicating his exposure to ionizing radiation during his service, "it is certainly possible that this ionizing exposure is now responsible for the recurrent condition previously discussed." Although Dr. L. alluded to a potential connection between the Veteran's current skin condition and his in-service exposure to ionizing radiation, he did not specify the nature of the Veteran's current skin condition. In any event, it is well established that a medical opinion that is speculative, general, or inconclusive in nature does not provide a sufficient basis upon which to support a claim. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus). In light of the insufficient medical opinions provided thus far, the Board is still unable to determine whether the Veteran's current rosacea was incurred in service. As such, the Board finds that the Veteran's claim for service connection for a skin disorder must be remanded for additional medical opinions. Accordingly, the case is REMANDED for the following action: (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 appropriate VA examination with a VA dermatologist to determine the nature and etiology of his current skin disorder(s). The claims folder, a copy of this remand, and all records on Virtual VA must be made available to the examiner in conjunction with the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. A notation to the effect that this review has occurred should be made in the examination report. The examiner should specifically take note of the August 2008 VA examination report, the February 2011 VA treatment records, and the April 2013 VA examination report. Following a review of the record and an examination of the Veteran, the examiner should specify the nature of any current skin disorder(s) and provide diagnoses for all identified disabilities. The examiner then MUST provide a response to the following: a. The examiner should express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that any such disability diagnosed on current examination had its onset in service or is otherwise causally or etiologically related to active service. The examiner should specifically discuss whether the Veteran's exposure to ionizing and/or solar radiation during his military service contributed to, caused, or led to the development of his current skin disorder. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. If the examiner finds that the Veteran's disability(ies) is(are) not related to his service, then he or she must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. After completing the above, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. No action is required of the Veteran until he is notified; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ THOMAS H. O'SHAY Acting 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).