Citation Nr: 1800510 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-08 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a skin condition, also claimed as skin cancer. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from January 1969 to January 1973, from March 2003 to September 2003, from May 2004 to April 2005, and from May 2005 to October 2005. The Veteran had numerous periods of active duty for training and inactive duty for training over his years of service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. Current jurisdiction resides with the Waco, Texas RO. In an October 2013 rating decision, the RO granted service connection for a right shoulder disability. A review of the record shows that the Veteran did not submit a substantive appeal (e.g., VA Form 9 or equivalent statement) for this particular issue. That is, he has not appealed either the initial rating or effective date assigned for his service-connected impairment of the right shoulder. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the veteran must separately appeal these downstream issues). See 38 U.S.C. § 7105(a) (West 2014); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.300, 20.302 (2017). Thus, the issue of service connection for a right shoulder disability is not on appeal before the Board. In April 2017 the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the electronic claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate process and assistance in developing his claim prior to final adjudication. The Veteran contends that his skin rash, claimed as skin cancer, is related to service as a result of his work outdoors with aircraft, which exposed him to sun and jet fuel or other chemicals. Additionally, the Veteran contends that his skin condition may be related to his work in the nuclear missile program during his first period of active service which may have exposed him to ionizing radiation. At the April 2017 hearing, the Veteran testified that he often touched the radioactive material in the missiles and did not wear appropriate protective clothing. The Veteran's STRs are silent with reference to skin conditions related to those showing in his recent medical treatment records. However, the Veteran contends, and has submitted medical articles outlining the long term effects of exposure to different types of radiation. The Veteran was last afforded a VA examination for his skin condition in December 2012. The Veteran was diagnosed with stucco keratosis on 50 percent of his legs, which the examiner opined had "no relationship to jet fuel." In comparison, a February 2010 VA examiner stated that jet fuel could be the cause of the Veteran's skin rash, but it would be speculation to so state. The December 2012 examiner also diagnosed actinic keratosis, which the examiner stated was a result of sun exposure and was also a pre-cancerous condition. Unfortunately, since the time of the December 2012 VA examination the Veteran has been diagnosed with skin cancer. The March 2015 supplemental statement of the case stated that part of the reason to deny the Veteran's claim was that he did not have a radiogenic disease within the meaning of 38 C.F.R. § 3.311. However, the Veteran was diagnosed with skin cancer in 2013, which is listed as a radiogenic disease at 38 C.F.R. § 3.311(b)(2)(vii). Additionally, the previous VA examinations and related opinions did not address any possible relationship with ionizing radiation exposure. The Board notes that the Veteran in his March 1973 VA examination reported that he had exposure to radiation for three and a half years in the nuclear field, but it was "said to be very low" levels and no badges were worn. Nonetheless, the Veteran's contentions with respect to ionizing radiation should be developed by the RO and addressed by a medical examiner. Accordingly, the case is REMANDED for the following action: 1. With the help of the Veteran, determine if there are any outstanding treatment records, and obtain them. 2. As the Veteran's service records show he worked in the nuclear missile field, and the Veteran has provided evidence of a diagnosis of a radiogenic disease, the RO should make a determination of whether the Veteran's activities qualify him as a "radiation-exposed Veteran" and send the Veteran's file for a dose estimate pursuant to 38 C.F.R. § 3.311 if required. 3. Schedule the Veteran for a VA skin examination. The entire claims file and 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. The examiner must address whether the Veteran currently has a skin condition. For each dermatological diagnosis made, the examiner should indicate: Whether it is at least as likely as not (i.e. 50 percent probability) that such condition was related to the Veteran's active service, to include: (i) exposure to Jet Fuels and chemicals related to aviation (ii) exposure to ionizing radiation (iii) exposure to sun The examiner is specifically asked to reconcile previous diagnoses, discussions, reports, and treatments, of skin disorder symptoms or conditions in the medical record with the opinion that the examiner ultimately puts forth. The examiner must provide all findings, along with a complete rationale for his or her opinions, in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 4. After undertaking any necessary additional development, readjudicate the remaining 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 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. §§ 5109B, 7112 (West 2014). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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) (2017).