Citation Nr: 1330711 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 09-28 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for multiple skin cancers, to include melanoma of the skin, and any residuals. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from September 1944 to January 1947. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2013, the Veteran testified before the undersigned Veterans Law Judge during a video conference Board hearing. A transcript of the hearing has been associated with the claims file. Later in August 2013, the Veteran submitted additional evidence without a waiver of initial RO consideration of the submitted material. It appears that some of these submissions have not been reviewed by the Agency of Original Jurisdiction. Therefore, the Board will remand this additional evidence in accordance with the instructions below. See 38 C.F.R. § 20.1304(c) (2012). During his Board hearing, the Veteran testified about numbness in his left arm and a collapsed left lung as current residuals of skin melanoma surgery in 1971. During the course of this appeal, he has introduced evidence concerning melanoma of the skin and basal cell and squamous cell carcinomas. Therefore, the Board has recharacterized the issue on appeal as it appears on the title page. 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 appellant, if further action is required on his part. REMAND Unfortunately, a remand is required for the issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). The Veteran seeks service connection for skin cancers and their residuals. Information in the claims file discloses that his service treatment records were probably destroyed in the 1973 fire at the National Personnel Records Center (NPRC). Only his January 1947 service discharge examination is available, which noted no skin abnormalities. There is information found in the claims file suggesting that the Veteran is a combat veteran entitled to application of the provisions of 38 U.S.C.A. § 1154(b). The provisions of 38 U.S.C.A. § 1154(b) state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. In this case, the record discloses that during service the Veteran received the Combat Infantryman's Badge (CIB) and later was service connected for posttraumatic stress disorder (PTSD). In this regard, his lay evidence of exposure to sun as a mortarman in the Philippines is consistent with the circumstances, conditions or hardships of service in the Pacific theater towards the end of World War II and the Board finds that the Veteran can be considered a combat veteran under the provisions of 38 U.S.C.A. § 1154(b) for purposes of this appeal. The Veteran testified during his Board hearing that while serving in the Philippines from March 1945 to April 1946 as a mortarman in the 152nd Infantry he and his buddies often went shirtless in the daytime because of the excessive heat and that he was sunburned up to the point of light blistering on two or three occasions. He said that he never tanned, but had a sort of red skin. He also testified that he had no skin problems prior to service and that a melanoma was discovered in 1971 when he was 44 years old. See hearing transcript at pp. 4-6, 8-9. The Veteran also went into some detail during his Board hearing on what his research had uncovered as his risk factors for skin melanoma. In addition, at the time of his hearing he submitted a handwritten paper about his individual risk factors. The Veteran also testified that the melanoma on his back was excised on or near the spinal cord and that his left hand had to be taped to his chest because of the operation so that he would not move his arms. He testified that after the operation his left side was numb, but now only his arm was. He said that numbness in his left arm still bothered him, such as when hammering a nail, gardening, or trying to button his shirt. He also testified that when the tape was removed from his left hand after surgery his left lung collapsed. Id. at pp. 12-13. In addition, the Board notes that two VA medical opinions dated in June 2008 and July 2009 indicate that the Veteran's skin melanoma and basal cell and squamous cell carcinomas were less likely as not related to service. Both VA examiners based their rationale, in part, on their view that the Veteran might have had more exposure to the sun from service discharge in 1947 to the melanoma surgery in 1971 than during his service in the Philippines. In fact, the June 2008 VA examiner specifically stated that it was fairly likely that the Veteran experienced a lot of ultraviolet rays to his skin during his post-service job with the post office and that the Veteran had not submitted any evidence whatsoever that from 1947 to 1971 he kept the skin of his back covered in an attempt to prevent ultraviolet exposure to his back. However, during his August 2013 Board hearing the Veteran testified that he worked for the post office as a night clerk from September 1949 to January 1981. He also testified that when he gardened after service he always wore a shirt and an Australian hat with a wide brim. He said that when he was growing up his mother always made them wear shirts and hats. Id. at p. 11. The Board notes this evidence was not available to either the June 2008 VA examiner or the July 2009 VA examiner. Therefore, their opinions cannot be considered adequate in view of the Veteran's subsequent credible history of protection or limitation from sun exposure. The Board also notes that the record contains June 2007 correspondence from the Veteran's dermatologist, Dr. G.T., who listed one skin melanoma, four basal cell carcinomas, and two squamous cell carcinomas that had been excised. D. G.T. also advised that "these skin cancers are all strongly correlated with increased sun exposure during youth." Dr. G.T. added that the Veteran had "received a significant amount of this ultraviolet damage while serving in the Pacific during World War II." The June 2008 VA examiner noted Dr. G.T.'s correspondence while the July 2009 examiner did not. Neither discussed Dr. G.T.'s finding that the Veteran's skin cancers were all "strongly correlated" with increased sun exposure "during his youth" while in military service in the Philippines. Therefore, on remand the RO/AMC should have the Veteran scheduled for a new VA examination to determine the nature and etiology of any skin melanoma, basal cell carcinoma, and squamous cell carcinoma and any residuals thereof. After examining the Veteran and reviewing the entire record, especially the Veteran's August 2013 Board hearing testimony and submissions, the VA examiner should then provide a thorough medical opinion detailing any current skin disorders or residuals, and then explaining why such are either related to service or not related to the Veteran's period of active duty. 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. The RO/AMC shall contact the Veteran and his representative and ask them to specify all private and VA medical care providers who have treated him for any skin disorders or claimed residuals, such as left arm numbness or a collapsed left lung. After the Veteran has signed the appropriate releases, the RO/AMC shall then attempt to obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file, in particular any records of treatment or evaluation for a collapsed lung, for numbness in the left arm, and those from his private dermatologist, Dr. G.T., for the period from April 1992. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Thereafter, the Veteran should be scheduled for a VA examination by an appropriate specialist to determine the nature and etiology of any current melanoma of the skin, basal cell carcinoma, or squamous cell carcinoma or any residuals thereof, including a claimed numb left arm and collapsed left lung incurred as a result of skin melanoma surgery in 1971. He or she must review the claims folder, in particular the Veteran's hearing transcript at pp. 4-6, 8-9, 11-14. In addition, the examiner should obtain a complete history of the Veteran's sun exposure in service and post-service. In rendering the opinions requested below, the examiner shall specifically consider as credible the Veteran's statements that he did not have any skin disorder before military service, that he took proper precautions for protection from the sun after service when gardening, that he worked at night as a postal clerk, and that during service in the Philippines he frequently spent the day shirtless and was sunburned to the point of blistering and peeling on at least three occasions. Following examination of the Veteran, the examiner shall address the following opinion requests. a) Whether the Veteran has any current melanoma of the skin disability, basal cell carcinoma disability, or squamous cell carcinoma disability or any residuals thereof, including left arm numbness and/or a collapsed left lung as a result of melanoma of the skin surgery in 1971. b) Whether any current disability or residual identified in a) above was at least as likely as not (50 percent probability or greater) incurred or aggravated by service, in particular as a result of sun exposure during service in the Philippines in 1945 or 1946. c) In developing his or her medical opinion, the examiner is asked to reconcile his or her medical opinion with that of Dr. G.T., the Veteran's private dermatologist, and comment specifically on the conclusion of Dr. G.T. in June 2007 that seven of the Veteran's skin disorders were all strongly correlated with the Veteran's increased sun exposure during youth, especially significant ultraviolet damage while serving in the Pacific during World War II. d) In developing his or her medical opinion, the examiner is also requested to comment specifically on what the Veteran described in his Board hearing and an August 2013 submission as his risk factors for skin disorders, such as skin complexion, geographic location and distance from the equator, work in higher elevations, etc. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Thereafter, the RO/AMC is to review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that such is responsive to and in compliance with the directives of this remand and, if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. When the development requested has been completed, the issue on appeal should again be reviewed by the RO/AMC on the basis of the additional evidence and readjudicated. If any benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ BARBARA B. COPELAND 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).