Citation Nr: 1751944 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-05 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for skin cancer, to include as secondary to service-connected residuals of an inclusion cyst removal, and/or to include as due to herbicide exposure. INTRODUCTION The Veteran served on active duty from November 1970 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, WV. This case was before the Board in September 2015, when it was remanded for further development. The case is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND The Veteran contends that his skin cancer is related to his active service, to include as secondary to the in-service removal of an inclusion cyst. As another theory of entitlement, the Veteran asserts that his skin cancer is related to his in-service herbicide exposure. If a Veteran was exposed to an "herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases will be presumptively service connected even if there is no record of the disease in service. 38 U.S.C. §§ 1110, 1116, 1131(2012); 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e) (2017). The Veteran had active service in the Republic of Vietnam from October 1971 to April 1972, per his service personnel records (SPRs). See SPRs in VBMS. As such, he has been presumptively exposed to herbicide (Agent Orange). His skin cancer is not one of the diseases that can be presumptively connected to herbicide exposure, as it is not a disorder enumerated by VA. Notwithstanding the presumption provisions, for which the Veteran does not qualify, the Veteran is not precluded from establishing service connection for skin cancer with proof of direct causation due to herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran underwent a VA examination in October 2012. The VA examiner found that the Veteran's current skin conditions were not related to the in-service removal of the inclusion cyst. Specifically, in the examination report, the examiner indicated that there were no medical records in the Veteran's claims file showing a diagnosis of skin cancer other than one from the VA that noted a history of skin cancer. However, the record contained several copies of a June 2010 pathology report which clearly indicated that the Veteran was diagnosed with a squamous cell carcinoma on the right hand, as well as actinic keratoses of the right thumb. Due to the fact that the examiner did not thoroughly review the Veteran's claims file when offering that opinion, the Board found this examination to be inadequate in its September 2015 remand. The Veteran underwent a VA examination in November 2015, and then his record was reviewed for an addendum opinion by the same VA examiner in March 2016. The examiner opined that the Veteran's pre-malignant skin lesions (actinic keratosis) and basal cell or squamous cell carcinomas that the Veteran had removed in the past five-ten years were not related to his active service or his in-service inclusion cyst removal. The examiner opined that inclusion cysts were completely unrelated to skin cancer of any type, and there was no logical way to connect the Veteran's recent skin cancers and pre-malignant lesions with the in-service inclusion cyst. Since that examination, the Veteran, through his representative, has advanced another form of entitlement - that his current cancer was related to his presumed in-service herbicide exposure. See September 2017 IHP, in VBMS. Since this is not an issue that a VA examiner has previously opined on, an addendum opinion should be obtained regarding the issue of direct connection between the Veteran's skin cancer and his in-service herbicide exposure from the November 2015/March 2016 VA examiner, if available. Accordingly, the case is REMANDED for the following action: 1. Refer the case to the November 2015/March 2016 VA examiner, if available, for an addendum opinion regarding whether the Veteran's skin cancer is related to his active service, to include herbicide exposure. Please note that the Veteran was presumptively exposed to herbicide (Agent Orange) in active service. A full rationale should be provided for all stated medical opinions. If the examiner concludes that the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why this opinion would be speculative and what, if any, additional evidence would permit such an opinion to be made. After reviewing the claims file, the reviewer should specifically opine as to the following: a) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed skin cancer had its onset in service or is etiologically related to the Veteran's active duty service, to include herbicide exposure. 2. Then, readjudicate the claim. If any benefit remains denied, issue an SSOC, and give the Veteran and his representative opportunity to respond. Then, return the case to the Board. 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 (CONTINUED ON NEXT PAGE) 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). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs