Citation Nr: 1335609	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  10-32 086	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Nashville, Tennessee


THE ISSUES

1.  Whether new and material evidence to reopen a claim for service connection for chronic obstructive pulmonary disease (COPD) has been received.

2.  Entitlement to service connection for basal cell cancer of the lip, claimed as due to exposure to herbicides.


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

M. McPhaull, Counsel


INTRODUCTION

The Veteran served on active duty from July 1965 to April 1968.  

By history, it is noted that a claim for service connection for COPD was previously denied by the RO in December 2003.  The Veteran requested reconsideration in January 2004 and an August 2004 rating decision continued the denial of the Veteran's claim.  The Veteran filed a timely notice of disagreement (NOD).  A statement of the case (SOC) was issued in January 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2006.  Relevant to the service connection denial, a hearing before a Decision Review Officer (DRO) was held in January 2008.  A transcript of that hearing is of record.  In June 2008 correspondence, the Veteran's representative informed the RO that the Veteran wished to withdraw his appeal for service connection for COPD.  In October 2008, the Veteran requested to reopen his claim for entitlement to service connection for COPD.

This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO, inter alia, denied entitlement to service connection for basal cell cancer of the lip and determined that new and material evidence had not been submitted to reopen a previously denied claim of service connection for a COPD.  In December 2009, the Veteran filed a NOD as to the aforementioned claims.  A SOC was issued in July 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that same month in July 2010.  After additional VA treatment records were associated with the claims file, a supplemental SOC was issued in September 2011 and October 2012.  

In December 2012, the appeal was remanded in order to afford the Veteran a Board hearing at his local RO (Travel Board hearing).  By way of May 2013 correspondence, the Veteran's representative informed the RO that the Veteran did not plan to appear for his scheduled May 2013 Travel Board hearing.  As such, the Veteran's request for a Board hearing is deemed withdrawn.  See 38 C.F.R. § 20.704(d) (2013).

In addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran's claim.  A review of the documents in such folder reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

The Board's decision addressing the request to reopen is set forth below.  The claim for service connection for basal cell cancer of the lip, claimed as due to exposure to herbicides, is addressed in the remand following the order; that matter 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.


FINDINGS OF FACT

1. All notification and development actions needed to fairly adjudicate the claim decided herein have been accomplished.

2.  In a December 2003 rating decision, the RO denied service connection for COPD.  In an August 2004 rating decision, the RO continued to deny the Veteran's service connection claim for COPD.

3.  The Veteran filed a timely NOD with the August 2004 rating decision, and timely filed a timely substantive appeal subsequent to the issuance of a January 2006 SOC; however, he withdrew his appeal in June 2008.  

4.  No evidence associated with the claims file since the August 2004 rating decision, when considered by itself or in connection with evidence previously assembled, is new but rather is cumulative of that already considered, does not relate to an unestablished fact necessary to substantiate the claim for service connection for COPD, or raises a reasonable possibility of substantiating the claim.



CONCLUSIONS OF LAW

1.  The August 2004 rating decision in which the RO denied service connection for COPD is final.  38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013).

2.  As evidence received since the RO's August 2004 denial is not new and material, the criteria for reopening the claim for service connection for COPD are not met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Specific to requests to reopen, a veteran must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.  

In an October 2008 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection for COPD, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; this letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates-in the event the claim is reopened, and service connection granted), as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman.  The letter also complied with the holding in Kent, as it notified the Veteran of both the reopening criteria and the criteria for establishing the underlying claim for service connection.  The March 2009 rating decision reflects the initial adjudication of the claim after issuance of this letter.  Hence, the October 2008 letter-which meets the content of notice requirements described in Dingess/Hartman, Pelegrini, and Kent-also meets the VCAA's timing of notice requirement.

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal.  Pertinent medical evidence associated with the claims file consists of service, VA, private, and Social Security Administration (SSA) treatment records.  Also of record and considered in connection with the previous appeal is the transcript of the Veteran's DRO hearing in January 2008, along with various written statements provided by the Veteran.  The Board finds that no further RO action on this claim, prior to appellate consideration, is required.

The Board acknowledges that no VA examination has been conducted and no medical opinion has been obtained in connection with the request to reopen.  However, the duty to obtain an examination under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured.  Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened).  See also Woehlaert v. Nicholson, 21 Vet. App. 456 (holding that adequacy of VA medical examination mooted upon Board's determination that claimant not entitled to reopening of claim, and conduct of VA medical examination, when claimant had not presented new and material evidence).  

In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975).  38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii).
 
If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e).  While respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) are included on the list of diseases subject to presumptive service connection on the basis of herbicide exposure, no other lung disease, to include COPD is included.  Id.  VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586-57589 (1996).

Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure.  See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303.

As indicated above, the RO denied the Veteran's claim for service connection for COPD in December 2003.  He requested reconsideration for his COPD service connection claim in January 2004.  In an August 2004 rating decision, the RO continued the denial.  The evidence then of record consisted of the service treatment records; VA treatment records dated from May 2001 to April 2002; private treatment records dated from March 1995 to February 2004; and statements from the Veteran and his wife.  The basis for the RO's December 2003 and August 2004 denials were that the evidence did not show any relationship between a diagnosed respiratory condition-COPD and any disease or injury in service, to include any relationship to herbicide exposure. 

The Veteran was notified of the denial in a letter also dated in August 2004, the Veteran initiated a timely July 2005 appeal with the RO's decision.  Furthermore, he filed a timely substantive appeal in February 2006, following the issuance of a January 2006 SOC.  In June 2008 correspondence, the Veteran's representative informed the RO that the Veteran was withdrawing his appeal.  As such, the RO's August 2004 decision is final as to the evidence then of record, and is not subject to revision on the same factual basis.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013).

However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the veteran.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).

The Veteran sought to reopen his previously denied claim in October 2008.  Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The Board notes, initially, that where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it is considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).  Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence.  38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.  38 C.F.R. § 3.156(c)(2).

Here, no new and material evidence was received within one year of the issuance of the August 2004 decision and no additional relevant service records have been added to the claims file since that decision.  Therefore, the Board must consider the provisions of 38 C.F.R. § 3.156(a).   

In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new.  As indicated by the regulation cited above, and by judicial case law , "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record.  This analysis is undertaken by comparing the newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material.

The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3   (1996).  Here, the last final denial of the claim is the RO's August 2004 rating decision.  Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

Pertinent evidence added to the claims file since August 2004 includes VA, private, and SSA treatment records; and statements, to include testimony from a January 2008 DRO hearing, from the Veteran.  The Board finds this that none of the evidence constitutes new and material evidence sufficient to reopen the previously-denied claim. 

The medical evidence added to the claims file since August 2004 is new in the sense that such was not of record at the time of the prior final denial.  The records document post-service complaints of, diagnosis of and treatment for lung disease-primarily, COPD.  The Board finds this evidence is not material as the records do not indicate that the Veteran has a lung disease which is linked to his active duty service.  Additional evidence, which consists of records of post service treatment that do not indicate in any way that a condition is service-connected, is not new and material.  See Cox v. Brown, 5 Vet. App. 95, 99 (1993).  The new evidence does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. 

As for the oral and written lay assertions of the Veteran, the Board notes that they reiterate assertions previously made in connection with his claim for service connection-essentially, that his current COPD is directly related to his Agent Orange exposure.  The Board finds all such lay evidence repetitive and cumulative of the evidence already of record prior to the August 2004 rating decision.

Moreover, the Board points out that, as a layperson without appropriate medical training and expertise, the Veteran is not competent to render a probative opinion with respect to the complex medical matter of the etiology of his current COPD, to include any opinion purporting to link COPD to in-service exposure to herbicides, to include Agent Orange.  The matter of the current etiology of COPD is one within the province of trained professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994).  Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific matter of the etiology of the disability (and whether it is attributable to presumed Agent Orange exposure) is a complex medical matter that falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer).  Hence, the lay assertions in this regard have no probative value. Therefore, where, as here, resolution of the appeal turns on a medical matter not capable of being established by lay assertions, unsupported lay statements, even if new, cannot serve as a predicate to reopen a previously disallowed claim.  See Hickson v. West, 11 Vet. App. 374 (1998); Moray v. Brown, 5 Vet. App. 211, 214 (1993).

Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for COPD are not met, and the RO's August 2004 denial of this claim remains final.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).


ORDER

As new and material evidence has not been received, the request to reopen the claim for service connection for COPD is denied.


REMAND

The Board's review of the record reveals that further RO action on the remaining claim on appeal is warranted.

The Veteran contends that his basal cell carcinoma is a result of exposure to Agent Orange while serving in the Republic of Vietnam.  

VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim.  38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one.  McLendon, 20 Vet. App. at 83.

Here, the evidence shows that the Veteran has had diagnoses and treatments for basal cell carcinoma.  The Veteran's treatment records, to include private, VA, and Social Security Administration, indicate that he has been surgically treated for basal cell carcinoma on his left upper lip.

The Veteran's primary contention is that his basal cell carcinoma is related to Agent Orange exposure in the Republic of Vietnam.  As noted, absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era.  See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). As the Veteran's service records reflect that he served in the Republic of Vietnam during the Vietnam era, he is presumed to have been exposed to herbicides, to include Agent Orange.  However, the record reflects that the Veteran has not been diagnosed with a disability recognized as associated with herbicide exposure, and basal cell carcinoma is not among the disabilities recognized by VA as associated with herbicide exposure.  See 38 C.F.R. § 3.309(e).  Consequently, the Veteran does not have a disability that would warrant service connection on a presumptive basis based on Agent Orange exposure.

Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure.  See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994).

Given the theory of entitlement asserted, and the absence of medical comment or opinion on this point, the Board finds that examination and medical opinion addressing direct service connection by an appropriate physician, would be helpful in resolving the claim for service connection.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. 79.

Accordingly, the RO should arrange for the Veteran to undergo medical examination for basal cell carcinoma, by an appropriate physician, at a VA medical facility.  The RO should forward the complete claims file to the examiner, including a copy of this remand, for review.  Following a review of the record, the physician should offer an opinion, based on full consideration of the record, and consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's basal cell carcinoma was caused by his exposure to Agent Orange during his service in the Republic of Vietnam.  The physician should be asked to provide both clear conclusions and a reasoned medical explanation supporting his/her conclusion, and should specifically address the Veteran's lay statements relating to the history, symptomatology, and onset of basal cell carcinoma.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).

The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as the original claim will be considered on the basis of the evidence of record).  See 38 C.F.R. § 3.655(a) (2013).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.  Id.  If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility.

Prior to arranging for the Veteran to undergo examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records.

The Veteran's paperless claims file currently includes outpatient treatment records from September 2011 to October 2012 from the Tennessee Valley Healthcare System/Murfreesboro.  As the Veteran's treatment records indicate a history of treatment for basal cell carcinoma, more recent records from these facilities likely exist.  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 Tennessee Valley Healthcare System/Murfreesboro all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since October 2012, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities.

While this matter is on remand, the RO should also 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 provide, or provide appropriate authorization for the RO to obtain, any additional private records related to the diagnosis and/or treatment of basal cell carcinoma.  

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 (2013).

The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013).  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 remaining on appeal.

Accordingly, the matter is hereby REMANDED to the RO for the following actions:

1.  Obtain from the Tennessee Valley Healthcare System/Murfreesboro all outstanding, pertinent records of evaluation and/or treatment of the Veteran dated since October 2012.  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 appeal that is not currently of record.  Specifically request that the Veteran provide, or provide appropriate authorization for the RO to obtain, any private medical records related to the diagnosis and/or treatment of basal cell carcinoma.  The Veteran should also be invited to submit any other pertinent evidence, including lay statements regarding the onset of observable symptoms of his basal cell carcinoma.

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.  After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination for basal cell carcinoma, by an appropriate physician, at a VA medical facility.

The entire claims file, to include a complete copy of this REMAND, along copies of any relevant Virtual VA records, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions.  All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. 

Based on examination of the Veteran, and review of the lay and clinical history, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability), that the Veteran's basal cell carcinoma:

(a)  had its onset during or otherwise medically related to active duty service ((to include presumed herbicide exposure therein); or;

(b)  became manifest to a compensable degree within one year from the date of discharge from such service.

In rendering the requested opinion, the physician should consider and discuss all pertinent medical and lay evidence, to include the Veteran's own assertions as to in service herbicide exposure and consider the Veteran's lay statements relating to the history, symptomatology, and onset of his claimed basal cell carcinoma, reflecting consideration of the Veteran's service, and the degree, extent, duration, and circumstances of his in-service herbicide exposure.

The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report.

5.  If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility.

6.  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).

7.  After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of pertinent evidence (to particularly include all evidence added to the claims file since the RO's last adjudication of the claim) and legal authority.

8.  If the benefit sought on appeal remains denied, furnish to the Veteran an appropriate supplemental SOC that includes citation to and discussion of all additional legal authority considered, along with reasons and bases for all determinations, and afford him 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).


______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs