Citation Nr: 18148746 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 12-04 623 DATE: November 8, 2018 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for skin disease, to include metastatic melanoma, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1967 to September 1969, which includes service in the Republic of Vietnam. These matters initially came before the Board of Veterans’ Appeals (Board) from a May 2010 rating decision. In August 2017, the Board remanded these matters for further development. As for characterization of the issues on appeal, in light of the Veteran’s reported symptoms and contentions and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the claim of service connection for metastatic melanoma as a claim of service connection for skin disease, to include metastatic melanoma. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, the symptoms described, and the information submitted or developed in support of the claim). Medical records, including the report of a June 2011 VA psychiatric examination, indicate that there are outstanding and relevant Social Security Administration (SSA) disability records. The issues must therefore be remanded in order to obtain these potentially relevant records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); see also Baker v. West, 11 Vet. App. 163, 169 (1998). Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Central Alabama Veterans Health Care System (dated to August 2018) and the Birmingham Vista electronic records system (dated to July 2017). On remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). Lastly, in the August 2017 remand, the Board instructed the Agency of Original Jurisdiction (AOJ) to afford the Veteran VA examinations to assess the nature and etiology of his claimed hearing loss and melanoma. Pursuant to the Board’s remand, the AOJ scheduled the Veteran for the requested examinations for a date in October 2017, but he failed to report for the examinations (see an October 2017 “Report of General Information” form (VA Form 27-0820)). In an October 2018 post-remand brief, the Veteran’s representative explained that the Veteran was unable to attend the examinations because “he is battling a life threatening metastatic melanoma” and he was “medically incapacitated” at the time of the examinations. He was not seeking a new examination. In light of this fact, and the fact that the Veteran’s claims are otherwise being remanded to obtain additional records, the Board finds that medical opinions should be obtained upon remand that address the etiology of the Veteran’s claimed hearing loss and skin disease. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any private treatment that he may have had for his bilateral hearing loss and skin/melanoma disorders, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Obtain any and all VA treatment records not already associated with the claims file from the Tuskegee, Montgomery, and Birmingham VA Medical Centers, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 3. Obtain from the Social Security Administration, or other state agency administering disability benefits, the records pertinent to the Veteran’s claim for disability benefits as well as the medical records relied upon in considering such a claim. Any negative search should be noted in the record and communicated to the Veteran. Additionally, in the event records are not obtained, if it is determined that additional research requests would be futile, then a memorandum of unavailability should be drafted and added to the record. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records and any records from the SSA, ensure that the claims file is provided to an appropriate examiner for an addendum opinion as to whether the Veteran’s hearing loss at least as likely as not (50 percent or greater probability) either (1) began during active service; (2) manifested within one year after discharge from service; or, (3) is related to an in-service injury, event, or disease, including the Veteran’s reported combat-related noise exposure in service. The examiner should also consider any lay statements of record regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records and any records from the SSA, ensure that the claims file is provided to an appropriate examiner for an addendum opinion as to whether the Veteran’s skin disorder, to include metastatic melanoma, at least as likely as not (50 percent or greater probability) either (1) began during active service; or, (2) is related to an in-service injury, event, or disease, including the Veteran’s presumed exposure to herbicide agents (including Agent Orange) and his reported skin spots that were present upon his return from Vietnam and have persisted ever since that time. 6. The examiner should take as conclusive fact that the Veteran is presumed exposed to herbicide agents during military service; the examiner is also reminded that merely stating that a skin disorder is not on the list of diseases presumed exposed to herbicides is not adequate basis for a negative opinion. The examiner should also consider any lay statements of record regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel