Citation Nr: 1646544 Decision Date: 12/12/16 Archive Date: 12/21/16 DOCKET NO. 12-23 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for skin rash of the face, neck, and chest, melanoma, and basal cell and squamous cell carcinoma due to herbicide exposure. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran completed active duty service from November 1961 to December 1968. This matter comes to the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which confirmed the previous denial of service connection for a skin disability due to Agent Orange exposure. In October 2014 the Board granted the Veteran's petition to reopen his claim based on new and material evidence, and the underlying service connection claim was remanded to the Agency of Original Jurisdiction (AOJ) for completion of additional claim development. The appeal has now been returned to the Board for further adjudication. 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). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The Board has also considered documentation included in the Virtual VA system in reaching the determination below. Accordingly, any future consideration of this case should take into consideration the existence of these electronic records. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Unfortunately, due to reasons that follow, a remand is required. Although the Board regrets this delay, it will ensure the Veteran is afforded adequate due process and claim development assistance consistent with the laws and regulations applicable to VA disability compensation claims. When the Board remands a claim to the RO it has a duty to ensure substantial compliance with the directives contained in that remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Moreover, according to McLendon v. Nicholson, when required to adequately adjudicate the claim, VA must provide a medical examination assessing the Veteran's claimed disabilities or conditions. See generally 20 Vet. App. 79 (2006). Such a medical examination is adequate when it describes the disability in sufficient detail such that the examiner's evaluation of the disability is "fully informed." Barr v. Nicholson, 21 Vet App. 303, 311 (2007). A medical examination is "fully informed" when the examiner has sufficient facts upon which to base an opinion relevant to the issue at hand. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Here, one of the Board's October 2014 remand directives requested that the AOJ provide the Veteran with VA examination and etiology opinion. As stated above, the Veteran is seeking service connection for his current skin conditions to include as due to herbicide exposure during his service in the Republic of Vietnam. The Veteran was provided with a VA examination in December 2014. Subsequently, the Veteran submitted articles detailing a new study finding that there is a link between exposure to Agent Orange and the development of skin cancer; in particular this study found a link between veterans involved in the actual spraying of Agent Orange and skin cancer. As the VA examiner did not get the opportunity to address this evidence, and in her rationale relied on a 2010 Update from the National Institutes of Medicine that there is inadequate or insufficient evidence to determine whether there is an association between exposure to Agent Orange and the development of melanoma or non-melanoma skin cancers, the Board finds that remand of this claim is required for provision of a supplemental opinion. Moreover, further review of the rationale provided by the December 2014 VA examination opinion reveals that the examiner improperly concluded that "there is no evidence that the Veteran was evaluated or treated for a skin condition during service." This fails to acknowledge the Veteran's November 2011 lay statement that he was treated for skin rashes in service, including chloracne. Additionally, the VA examiner's negative etiology opinion addressing herbicide exposure appears to have been based solely on the 2010 National Institute of Medicine study cited in the opinion, rather that the Veteran's particular circumstances. Accordingly, the etiology opinion contained in the December 2014 VA examiner is inadequate for rating purposes, and on remand the VA examiner is directed to address the Veteran's lay statements of record as well as the new evidence submitted on December 2015. 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). Expedited handling is requested.) 1. Return the Veteran's claims file to the examiner who conducted the December 2014 VA skin condition examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the AOJ or the examiner. The entire claims file including a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. If a new examination is warranted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: i. The Veteran's November 2011 lay statement ii. The Veteran's August 2012 formal appeal iii. The December 2014 VA examination report iv. The articles submitted by the Veteran in December 2015 detailing a new medical study documenting a link between Agent Orange exposure and skin cancer. c. The examiner should assess what current disabilities the Veteran has of the skin, i.e., skin rash of the face, neck, and chest, melanoma, basal cell, squamous cell carcinoma, chloracne, etc., or residuals thereof. d. The examiner should then provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any Veteran's current skin disabilities had their clinical onset during active service or is related to any in-service disease, event, or injury, including exposure to herbicides. In providing this opinion, the examiner should specifically acknowledge the following: i. the service treatment records; ii. the Veteran's statements asserting skin symptoms in service and since his discharge from service; and iii. The articles submitted by the Veteran in December 2015 detailing a new medical study documenting a link between Agent Orange exposure and skin cancer. e. Please provide a complete rationale for your opinions. If you cannot answer the above questions without resorting to speculation or remote possibility, please indicate why that is so. Also please note that any opinion that the Veteran's skin disabilities is not related to herbicide exposure solely on the basis of scientific studies without consideration of the Veteran's specific circumstances, will be insufficient. 2. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. After undertaking any necessary additional development, readjudicate the issue on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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). _________________________________________________ S. L. Kennedy 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) (2016).