Citation Nr: 1332335 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 13-03 440A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for skin cancer, to include as due to ionizing radiation exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1943 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in that file reveals that there are VA medical records dated from August 2010 to July 2012. However, these records were considered in the February 2013 statement of the case (SOC), and the remaining documents are either duplicative or irrelevant to the issue on appeal. 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. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and 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. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Initially, the Board notes that medical records from two of the Veteran's private physicians are unavailable. However, the Veteran has not been notified of the RO's inability to obtain the medical records from Dr. R.M. and Dr. T.G. (initials used to protect privacy). Therefore, the RO should provide such notice to the Veteran and provide him an opportunity to submit any records in his possession. The Board does note that the Veteran has reported that he has skin cancer, and he has submitted an explanation of benefit records, which document the removal of skin lesions. VA medical records also document the Veteran's reported history of skin cancer. However, there is some indication in the medical records that he could also have actinic keratosis instead. Thus, there is some question as to the diagnosis of his skin disorder. Notably, VA medical records indicate that the Veteran had a skin monitoring appointment in August 2012, yet there is no record of that appointment in the claims file. Such records could provide evidence of a diagnosis of skin cancer. Therefore, on remand, the RO/AMC should attempt to obtain any outstanding VA medical records that pertain to a skin disorder. In the event that additional medical records do not provide sufficient evidence to clarify the diagnosis, the Board finds that a VA examination should be afforded. Moreover, skin cancer is considered a radiogenic disease under the provisions of 38 C.F.R. § 3.311. The Veteran has contended that he was exposed to ionizing radiation during his military service. In particular, he claims that he was exposed during the occupation of Hiroshima and Nagasaki, Japan. His personnel records show that he was awarded a World War II Victory Medal for his participation in the occupation of Japan onboard the U.S.S. Baltimore from November 1945 to February 1946. Thus, in the event that there is a diagnosis of skin cancer, a dose estimate is necessary to determine the extent of radiation exposure, if any, the Veteran may have had during his military service. 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 should notify the Veteran that his medical records are unavailable from Dr. R.M. and Dr. T.G. and give him the opportunity to submit any records that he may have in his possession. 2. The RO/AMC should request that the Veteran provide the names and addresses of all health care providers who have treated him for a skin disorder. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. The RO/AMC should also secure all outstanding VA medical records dated from December 2010 to the present, including any available records from a skin monitoring appointment in August 2012. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After the above development has been completed, the Veteran should be afforded a VA examination to determine clarify the diagnosis of any current skin disorder. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all skin disorders that have been present at any point since the Veteran filed his claim in August 2010. He or she should discuss the Veteran's history of any such skin disorder and specifically indicate whether the Veteran has had any form of skin cancer. If so, he or she identify the type of cancer, the site of each lesion, and the date of diagnosis. All opinions expressed should be accompanied by supporting rationale. 4. After the completing the foregoing development, and if the Veteran has been shown to have skin cancer during the appeal period, the RO/AMC should take all appropriate steps to obtain any information regarding the Veteran's possible exposure to ionizing radiation. The RO/AMC should request that the Defense Threat Reduction Agency (DTRA) verify whether the Veteran had exposure to ionizing radiation during the occupation of Hiroshima and Nagasaki, Japan, and provide the necessary dosimtery information. If necessary, the claims file should then be submitted to the Under Secretary for Benefits to obtain an advisory medical opinion as to whether it is at least as likely as not that any exposure to ionizing radiation during the Veteran's service caused or contributed to his development of skin cancer. 5. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 6. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and her representative 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. The appellant 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). _________________________________________________ JESSICA J. WILLS 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).