Citation Nr: 1804627 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-04 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for skin cancer, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for an intestinal disorder, to include diverticulosis and gastritis. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from February 1964 to February 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In an August 2013 decision, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. The Veteran testified at an April 2017 videoconference hearing before the undersigned Veterans Law Judge. A transcript from that proceeding is associated with the Veterans Benefits Management System (VBMS) folder. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Regarding the Veteran's service connection claim for skin cancer, the Board notes that he has not yet been provided with a VA examination. The record reflects that the Veteran has been found to have basal cell carcinoma. See January 2017 Aurora Diagnostics. During the April 2017 Board hearing, the Veteran testified that he began to experience skin problems when he was exposed to extreme heat and sun during his service in Vietnam. See April 2017 Board Hearing Transcript (Tr.), page 3-5. He described experienced experiencing sunburn and skin growths during this period. The Veteran also reported that the doctor who removed his cancer told him that the cancer was from his sun exposure a long time ago. See May 2011 Notice of Disagreement. The veteran is competent to describe his observable skin symptoms during service and to relay what a doctor has told him. See Layno v. Brown, 6 Vet. App. 465 (1994). As the Board lacks sufficient medical evidence to render a decision on this issue, a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Veteran has also asserted that his skin cancer was related to his exposure to herbicide agents in Vietnam. The Veteran's STRs show that he received treatment from the 142nd Medical Dispensary in December 1965, and an APO number of 96238 was noted. This APO number corresponds to Qui Nhon, Vietnam. See Overseas Zip Code APOS: Years 1965 to 1984, General 1942-2002 APO-FPO Files, M21-1, IV.ii.1.H.1.g. As this record demonstrates that the Veteran had service in Vietnam in 1965, his exposure to herbicide agents is presumed. 38 C.F.R. § 3.307(a)(6)(iii). Although skin cancer is not a presumptive disease associated with exposure to herbicide agents, the Board must also determine whether service connection is warranted on a direct basis. See Combee v. Brown, 24 F.3d 1039 (Fed. Cir. 1994). Consequently, the medical opinion provided on remand should address this theory of entitlement. In addition, the Veteran has not been afforded a VA examination for his service connection claim for an intestinal disorder. The Veteran was noted to have diverticulosis in October 2008 after a colonoscopy was performed. The Veteran reported that he was treated for stomach and colon problems during his service in Vietnam. See May 2010 Statement in Support of Claim. The Veteran and his wife also testified at the April 2017 hearing that he experienced symptoms of back pain, gas, and rectal bleeding during the first year following his discharge from active service. See Tr., page 13-14. He indicated that with the exception of the rectal bleeding, his initial symptoms have persisted since that time. As the evidence currently of record does not allow the Board to reach a determination on the question of nexus, a VA examination is warranted. See McLendon, 20 Vet. App. at 81-82. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his skin cancer or intestinal disorder, to include the Harris Regional Hospital. The AOJ should also secure any outstanding, relevant VA medical records, to include records from the Wm. Jennings Bryan Dorn VA Medical Center dated since November 2011. 2. After completing the preceding development in paragraph 1, schedule the Veteran for a VA examination to determine the nature and etiology of any skin cancer that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must elicit a full history from the Veteran regarding his skin cancer. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. The Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should also note that the Veteran is presumed to have been exposed to herbicide agents, including Agent Orange, during service. First, the examiner should state whether the Veteran has been diagnosed with skin cancer, to include basal cell carcinoma. The examiner should also address whether the Veteran has chloracne or an acneform disease consistent with chloracne. Second, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's skin cancer manifested during active service; manifested within one year of his separation from active service; or is otherwise related to active service, to include his exposure to sun and/or herbicide agents therein (notwithstanding the fact that it may not be a presumed association). In providing an opinion, the examiner should consider the following: (1) the Veteran's April 2017 Board hearing testimony that he began to experience skin problems such as sunburn and skin growths when he was exposed to extreme heat and sun during his service in Vietnam; (2) the Veteran's report from his May 2011 Notice of Disagreement that his period of active service in the Army was the only time that he had been in the sun for long periods; (3) the April 2017 Board hearing testimony from the Veteran and his wife that he experienced skin problems when he was first separated from service, and he later sought treatment from a dermatologist; and (4) the Veteran's May 2010 statement that he had a lot of skin cancers removed from his body beginning in the 1970's. 3. After completing the preceding development in paragraph 1, schedule the Veteran for a VA examination to determine the nature and etiology of any intestinal disorder, to include gastritis and diverticulosis, that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must elicit a full history from the Veteran regarding his intestinal disorder. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. The Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should first identify all current intestinal disorders, to include gastritis and diverticulosis. For each identified disorder, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during active service, or is otherwise related to active service. In providing an opinion, the examiner should consider the following: (1) the Veteran's May 2010 statement that he began to have stomach and colon problems in Vietnam; (2) the Veteran's report from his May 2011 Notice of Disagreement that he received treatment for stomach problems in Vietnam, and he was told that the issue was the result of nerves, but the problem never went away; (3) the December 1975 service treatment record from the 142nd medical dispensary in Vietnam that noted a diagnosis of nervousness; (4) the April 2017 testimony from the Veteran and his wife that he experienced symptoms of back pain, gas, and rectal bleeding during the first year following his discharge from active service; (5) the Veteran's April 2017 testimony that with the exception of the rectal bleeding, his symptoms have continued to be present since service; and (6) the August 1979 VA Hospital Summary noting that the Veteran had been diagnosed with ulcerative colitis in July 1979 after he underwent proctosigmoidoscopy for the first time. 4. Review each examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, to include obtaining additional examinations or opinions if necessary, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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. §§ 5109B, 7112 (2012). _________________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).