Citation Nr: 1342893 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 12-34 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for basal cell carcinoma, nodular and actinic keratosis with superficial squamous cell carcinoma (skin cancer), to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from February 1962 to February 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified before the undersigned at a March 2013 Travel Board hearing. The hearing transcript is of record. During the pendency of this appeal, the Veteran has reported that he also believes that he has had cancer of the lymph glands and testicular cancer as a result of his exposure to Agent Orange during active duty in Vietnam. See June 2009 claim, January 2010 claim, August 2011 notice of disagreement, November 2012 VA Form 9, and March 2013 hearing transcript. The issues of entitlement to service connection for cancer of the lymph glands and entitlement to service connection for testicular cancer have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 Veteran contends that his current diagnosis of skin cancer is due to his exposure to Agent Orange during active duty in Vietnam. Specifically, he testified during his March 2013 Travel Board hearing that he worked 8-10 hours per day in Vietnam, loading and unloading oil and diesel fuel drums from planes, storing Agent Orange drums, and clearing foliage that was contaminated with Agent Orange. See March 2013 Travel Board hearing transcript. Service treatment records (STRs) indicate the Veteran served in Vietnam during the Vietnam Era. Thus, exposure to herbicides during service is conceded. See 38 C.F.R. § 3.307. The Board notes that skin cancer is not entitled to a presumption of service incurrence under 38 C.F.R. § 3.309(e) (2013). However, when a veteran is found not to be entitled to a regulatory presumption for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). Post-service treatment records document that the Veteran has had skin cancer, namely basal cell carcinoma, nodular and actinic keratosis with superficial squamous cell carcinoma. The evidence of record does not include a medical opinion addressing whether the Veteran's skin cancer is causally or etiologically related to his conceded in-service herbicide exposure. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has reported that he started having skin problems, for which he was treated by private physicians, within one year of his return from Vietnam. See August 2011 notice of disagreement, November 2012 VA Form 9, March 2013 hearing transcript. He also reported that he was initially diagnosed with skin cancer by one of his private physicians within a year or two after his return from Vietnam. See March 2013 hearing transcript. The Veteran is competent to testify to observable symptomatology. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Veteran also testified that one of the private physicians who treated him for his skin cancer, Dr. George Bulkley, indicated that his skin cancer was possibly caused by his exposure to Agent Orange. These statements are sufficient to meet the threshold requirements for a VA examination. See McLendon, 20 Vet. App. at 83. Therefore, a remand is required in order to obtain a VA medical opinion regarding whether the Veteran's claimed skin cancer is secondary to conceded in-service exposure to herbicides. The appellant is advised that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for any skin-related disability since service. The AOJ should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. 2. Then, schedule the Veteran for a VA skin examination with a dermatologist. The claims file, including a copy of this remand, must be reviewed in conjunction with the examination. The examiner should identify any current skin disability and determine whether it is at least as likely as not, i.e., a 50 percent probability or greater, that a skin disability is traceable to military service, including conceded in-service exposure to herbicides. All opinions expressed must be supported by a complete rationale. 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. The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained. 3. Then, readjudicate the issue on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should thereafter be returned to the Board for further appellate review, if otherwise in order. No action is required of the Veteran unless he is notified. 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. 2013). _________________________________________________ F. JUDGE FLOWERS 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) (2013).