Citation Nr: 1601603 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 13-04 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for skin cancer, including as due to in-service herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from April 1968 to April 1970, including in combat in the Republic of Vietnam from September 1968 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied, in pertinent part, the Veteran's claim of service connection for squamous cell carcinoma, including as due to in-service herbicide exposure. The Veteran disagreed with this decision in August 2012. He perfected a timely appeal in January 2013. A Travel Board hearing was held at the RO in October 2015 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. In an April 2015 rating decision, the RO assigned a 70 percent rating effective December 24, 2014, for the Veteran's service-connected PTSD. As the time for initiating an appeal of this decision has not yet expired, an issue with respect to the appropriate disability rating for the Veteran's service-connected PTSD is not before the Board. See 38 C.F.R. § 20.302 (2015). The Board notes that, pursuant to relevant case law, a Veteran may identify the scope of a claim by reference "to a body part or system that is disabled or by describing symptoms of the disability." In determining the scope of a claim, the factors for the adjudicator to consider are a Veteran's descriptions of the claim and symptoms as well as the information submitted or obtained by VA in support of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Claims that present distinct factual bases (such as medical disorders with different medical causes) may be distinguished and adjudicated independently, however, even if a Veteran feels that they are the same. See Tyrues v. Shinseki, 23 Vet. App. 166, 187 (2009), aff'd 631 F.3d 1380 (Fed. Cir. 2011); Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008). The medical evidence in this case indicates that the Veteran has been diagnosed as having either squamous cell carcinoma or basal cell carcinoma, which is defined as malignant tumors of the skin (or skin cancers). See also DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 293, 295 (30th ed. 2003). Thus, the issue on appeal has been recharacterized more broadly as a claim of service connection for skin cancer, including as due to in-service herbicide exposure. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he incurred skin cancer (which he characterized as squamous cell carcinoma) during active service. He alternatively contends that in-service exposure to herbicides (Agent Orange) or excessive sunlight while on active combat service in the Republic of Vietnam caused or contributed to his skin cancer. Having reviewed the record evidence, the Board finds that additional development is required before the underlying claim can be adjudicated on the merits. In this case, the Veteran's DD Form 214 clearly shows that he served in combat in the Republic of Vietnam. With respect to the assertions that in-service exposure to excessive sunlight or herbicides while in combat in Vietnam caused or contributed to his skin cancer, the Board finds that the Veteran's lay statements and hearing testimony regarding his excessive sun exposure are credible because they are consistent with the facts and circumstances of his honorable combat service in Vietnam. See 38 U.S.C.A. § 1154(b) (West 2014); 38 C.F.R. § 3.303(d) (2014). Moreover, because the Veteran has the requisite Vietnam service, his exposure to herbicide agents in service is presumed. See 38 U.S.C.A. §§ 1116(f) (West 2014). The Board next notes that, although the record evidence does not show a current diagnosis of squamous cell carcinoma, it shows a current diagnosis of basal cell carcinoma, which is also a malignant tumor. For example, on VA outpatient treatment in April 2009, the Veteran complained of a non-healing raised lesion on the right ear. Physical examination showed a 0.25 cm x 0.25 cm lesion on the right ear. The impression was basal cell carcinoma. This lesion was removed surgically from the Veteran's right ear later in April 2009. In May 2009, the Veteran complained of a right eye lesion which had been present for many years. Physical examination showed a 15 mm x 10 mm raised lesion at the right medial canthus within 5 mm of the lacrimal puncta. The impression was basal cell carcinoma. In August 2009, the Veteran had a 15 mm x 10 mm raised lesion at the right medial canthus excised surgically. The post-operative diagnosis was basal cell carcinoma. The Board observes in this regard that, in Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013), the Court held that, when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during the pendency of the claim. Given that basal cell carcinoma is among the most common types of malignant tumors, the diagnosis of this malignancy in 2009 (a little over a year prior to the filing of the Veteran's claim in 2010) falls within the purview of Romanowsky. The Board next observes that the first requirement of McLendon is the existence of a current disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Applying Romanowsky and McLendon to the record evidence, the Board finds that a current disability (basal cell carcinoma) existed at the time that the Veteran's claim was filed in 2010 and the 2009 diagnosis of basal cell carcinoma is sufficient to satisfy the current disability element of McLendon. Id. Second, as noted above, the Board already has found the Veteran's account of sun exposure while in combat in the Republic of Vietnam to be credible lay evidence that this in-service event occurred. The Veteran's lay statements and Board hearing testimony as to the occurrence of this in-service event (exposure to excessive sunlight) also is sufficient to meet the in-service element of McLendon. Id. Third, basal cell carcinoma is one of the types of malignant tumors that arise mostly in sun-exposed areas of the skin. The record evidence showing removal of such malignant tumors from the Veteran's chest, ear, and right eye (all of which are sun exposed areas) since his service separation (as outlined above) also is sufficient to establish the indication of a nexus element found in McLendon. Id. Fourth, there currently is insufficient evidence of record for the Board to determine whether the Veteran's skin cancer is related to active service. To date, he has not been scheduled for an appropriate VA examination to determine the nature and etiology of his skin cancer. Given the in-service occurrence of exposure to excessive sunlight while in combat in the Republic of Vietnam, and because the Veteran currently resides in a city which has very high temperatures during the summer months, these facts tend to call into question the matter of causation and also meet the insufficient evidence element of McLendon. Id. In summary, because the Veteran's claim meets the requirements set out in McLendon, and because there is no opinion of record addressing the contended causal relationship between the Veteran's skin cancer and active service, the Board finds that, on remand, he should be scheduled for appropriate VA examination to determine the nature and etiology of his skin cancer, to include whether the in-service occurrence of sun exposure is an event linked to his diagnosis of basal cell carcinoma. The AOJ also should attempt to obtain the Veteran's updated VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify all VA and non-VA clinicians who have treated him for skin cancer since his service separation. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his skin cancer. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner is asked to identify any skin cancer(s), to include squamous cell carcinoma or basal cell carcinoma, currently experienced by the Veteran, if possible. Based on a review of the file, the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to provide an opinion addressing the following questions: (1) Is it at least as likely as not (a 50 percent or greater probability) that skin cancer, to include squamous cell carcinoma or basal cell carcinoma, if diagnosed, was caused by, or a result of, the cumulative effect of excessive exposure to sunlight which the Veteran sustained during active service, and any excessive exposure to sunlight which the Veteran may have sustained post-service while residing a high temperature climate? (2) Is it at least as likely as not (a 50 percent or greater probability) that skin cancer, to include to include squamous cell carcinoma or basal cell carcinoma, if diagnosed, was caused by, or a result of, the sole effect of any excessive exposure to sunlight which the Veteran may have been sustained post-service while residing a high temperature climate? In making this assessment, the examiner should discuss whether there is a medically sound basis to attribute any currently diagnosed skin cancer to the in-service occurrence of exposure to excessive sunlight; or, whether any currently diagnosed skin cancer is more properly attributable to any post-service exposure to excessive sunlight. The examiner is advised that the Veteran's in-service exposure to excessive sunlight while in combat in Vietnam has been conceded by VA. The examiner also is advised that the Veteran has been diagnosed as having basal cell carcinoma after his separation from service. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history (during and after his active duty service) and the relevant medical sciences as applicable to this case, including the use of medical literature, which may reasonably explain the medical guidance in the study of this case. 3. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. Arrange for any further development indicated by the results of the development requested above, and re-adjudicate the claim. If the determination remains adverse to the Veteran, then the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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 2014). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).