Citation Nr: 1330622 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 13-09 712 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for skin cancer, claimed as due to radiation exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty from December 1945 to April 1947, and from April 1951 to January 1952. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2012 rating decision in which the RO denied, inter alia, service connection for skin cancer. In October 2012, the Veteran filed a notice of disagreement (NOD) as to the denial. The RO issued a statement of the case (SOC) in February 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2013. In July 2013, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge . A transcript of the hearing is of record. During the hearing, the undersigned agreed to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. For the reasons expressed below, the claim on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action on the claim on appeal is warranted. The Veteran has asserted that he has skin cancer as a result of radiation exposure during his participation in atomic bomb testing during OPERATION CROSSROADS. The RO has denied the claim, in part, on the basis of no current disability. During the July 2013Board hearing, the Veteran testified that he had a skin cancer removed at a VA medical center one week prior to the hearing. Transcript [T.] page 6. A review of the file reveals that the most recent VA outpatient treatment records associated with the file are dated in September 2012. Thus, it appears that there are outstanding treatment records dated from September 2012 to the present. Additionally, the Veteran testified that he received VA treatment for skin cancer since 1993. T. page 5. His representative indicated that he may have received VA treatment for skin cancer since 1992. Id. A review of the claims file reveals that in April 1987, the Veteran filed a claim for service connection of "skin growths due to radiation exposure," which was not adjudicated. At that time, he identified VA outpatient treatment records at the VA Medical Center (VAMC) in Muskogee, Oklahoma from February 1987 to March 1987. It appears the Veteran attached some records dated during this period, but not all. Specifically, VA treatment records dated in January 1987 document that the Veteran was treated for a lesion on his scalp. The assessment was "inclusion cyst vs. basal cell". The lesion was subsequently removed in February 1987, however the results of any pathology testing are not in the file. As these results may determine whether the Veteran has ever had a diagnosis of skin cancer, it appears that there are outstanding, relevant VA treatment records dated in 1987. Further, during the pendency of this claim, VA skin cancer treatment records were requested from June 2001, but not prior to 2001. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Muskogee VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated from September 2012 through the present, as well as records dated from January 1987 to June 2001, regarding skin treatment, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Additionally, there appears to be outstanding, pertinent private medical records. During his Board hearing, the Veteran reported that his private physician, Dr. M., from whom he received treatment in the 1970 has related his skin cancer to radiation exposure. T. page 8. A review of the file reveals that records from Dr. M. are not of record. Therefore, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private records, to include those from Dr. M,, referenced above. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following actions: 1. Obtain from the Muskogee VAMC all outstanding, pertinent records regarding skin evaluation and/or treatment of the Veteran dated from January 1987 to June 2001 and from September 2012 to the present. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent provide records, to particularly include those from his treating physician Dr. M, whom he reports has indicated a possible relationship between his skin cancer and radiation exposure. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted (to include arranging for the Veteran to undergo VA examination or otherwise obtaining a medical opinion, if appropriate), readjudicate the claim on appeal. In light of all pertinent evidence and legal authority. 6. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). The RO is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).