Citation Nr: 1604715 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 11-13 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for skin cancer (diagnosed as basal cell carcinoma), claimed as due to ionizing radiation and/or as aggravated by posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from October 1951 to September 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In his May 2011 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. Thereafter, in a September 2011 correspondence, he withdre his hearing request. See 38 C.F.R. § 20.704(d). In June 2012, the Board remanded the claims on appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. At that time, the Board also remanded claims for service connection for hypertension and coronary artery disease. In a March 2014 rating decision, the RO granted service connection for hypertension and coronary artery disease. Such action represents a full grant of the benefits sought with respect to those issues; they are no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed.Cir. 1977). The Board notes that the Veteran is currently in receipt of a 100 percent disability rating. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that his skin cancer was caused or aggravated by claimed his exposure to radiation at "CBR school in Gifu Japan in 1952." He alternately contends that it developed secondary to his service-connected PTSD. (April 2015 statement). The development directed by the Board in its last remand was not accomplished. The law mandates that where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the June 2012 Board remand, 38 C.F.R. § 3.311 identifies skin cancer as a radiogenic disease and states that: In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in § 3.307 or § 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. The Board found that the claims file does not reflect that any assessment has been made as to the size and nature of the radiation dose or doses. 38 C.F.R. § 3.311 also directs that a request will be made for any available records concerning the Veteran's exposure to radiation and all such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate. Id. Subsequently, the claim will be referred to the Under Secretary for Benefits for further consideration. Id. Additionally, VA has implemented specific procedures for the processing of radiation claims. See VA Adjudication Procedures Manual, M21-1, IV.ii.1.C.. All claims for service connection based on radiation exposure are to be centralized at the Jackson RO. Although the original RO retains jurisdiction on the appeal, the claims file should be transferred so that the Jackson RO can develop the radiation claim and then return the file for completion of the appeal. Id. The Board found that since the Jackson RO's initial refusal of jurisdiction, the Veteran now has a diagnosis of a radiogenic disease and the record must be transferred to the Jackson RO for appropriate development under 38 C.F.R. § 3.311. This action has not been completed. Furthermore, while the AOJ obtained a VA examination in March 2015 to address the question of whether skin cancer was caused or aggravated by PTSD, the examiner did not address the question of claimed radiation exposure, if found. As such, an addendum medical opinion may be necessary to address this question, if radiation exposure is found. Since the Board remand, the Veteran has also identified additional private medical providers and requested that the RO obtain relevant records. While the AOJ obtained most of the requested records, not all the records were obtained or requested at least two times, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). In April 2013, the AOJ requested records from Beaufort Memorial Primary Care (Dr. Gambla), Trident Dermatology (Dr. Lang), and Memorial University Medical Center. The AOJ should make an additional attempt to obtain such records. 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). If relevant medical evidence is obtained, an addendum medical opinion may be necessary to consider such evidence. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Take appropriate action pursuant to M21-1, IV.ii.1.C to transfer the Veteran's claims file to the Jackson RO for development of the radiation claim under 38 C.F.R. § 3.311 - to include dose estimation if applicable. The Jackson RO must develop the pending radiation claim and then return the file for completion of the appeal. 2. The AOJ should again attempt to obtain records from Beaufort Memorial Primary Care (Dr. Gambla), Trident Dermatology (Dr. Lang), and Memorial University Medical Center. 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. If additional pertinent medical records have been obtained and/or radiation exposure has been found, refer this matter to the March 2015 VA examiner for an addendum medical opinion. If the March 2015 VA examiner is unavailable, the claims file should be provided to an appropriate medical clinician to render the requested opinions. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the claims file, which includes VA treatment records, the VA medical opinion provider should offer an opinion on the following: a) Does the Veteran currently have a skin cancer? If so, please note the diagnosed disorder(s). b) Is it at least as likely as not that any skin cancer is related to the Veteran's active service? If radiation exposure has been found, the examiner should specifically consider the Veteran's reports of exposure to radiation in 1952 (in conjunction with any radiation dose estimate provided by the RO). c) Is it at least as likely as not that the Veteran's service-connected PTSD caused or aggravated (permanently worsened) any skin cancer? The examiner should provide an opinion as to the questions of BOTH causation AND aggravation. If the examiner finds that any skin cancer was aggravated by a service-connected disability, he/she should determine, if possible, to what extent it was aggravated beyond the natural progression of the disorder. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The VA medical opinion provider should discuss the particulars of this Veteran's medical history - to include the July 2011 medical opinion of Dr. P.G. Lang and August 2010 letter of Dr. K.M. Gambla - and relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 4. When the development requested has been completed, the case should again be reviewed by the AOJ on the basis of the additional evidence. If the benefit sought is not granted, the AOJ should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. 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).