Citation Nr: 1806513 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-20 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a recurrent basal cell carcinoma (BCC), claimed as skin cancer, to include as secondary to herbicide exposure. 2. Entitlement to an initial compensable evaluation for right ear hearing loss disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to March 1970, with combat service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in a hearing at the RO in August 2017; a transcript is of record. The Board notes that while a prior rating in April 1985 denied service connection for a skin cancer on a direct basis, the current rating on appeal denied the BCC claim to include as secondary to herbicide exposure. Hence, the Board shall address this matter on a de novo basis rather than as a request to reopen a previously denied claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds additional development is warranted before the claims may be adjudicated. Regarding the claim of service connection for a recurrent BCC, claimed as skin cancer, evidence obtained includes treatment for recurrent BCC dating back to the 1970s, with the Veteran confirming at his August 2017 hearing that he had a malignancy removed a year and a half earlier. Also obtained were VA treatment records from September to October 2017 showing a diagnosis of BCC removed from the forehead. See Transcript at pg. 5-8; 20 pg. CAPRI received 10/18/17; 41 pg. private treatment records received 9/12/17; 31 pg. private treatment records received 11/30/12; and 62 pg. private records received 8/6/12. Due to the ongoing treatment for recurrent BCC and the Veteran's confirmed service in Vietnam, a medical opinion should be obtained address whether the BCC is directly related to active service, to include his presumed exposure to herbicide agents. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to herbicides does not preclude direct service connection for other conditions based on exposure to herbicides); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Additionally, the Veteran has alleged that the recurrent BCC is the result of sun exposure during his combat service in Vietnam. Thus a medical opinion should address this claimed theory of entitlement in addition to herbicide exposure. Regarding the claim for an initial increased rating, the Veteran is noted to have last been provided an examination addressing the severity of his service connected right ear hearing loss in August 2012. Given that his August 2017 hearing testimony is an assertion that this service-connected hearing loss has worsened and is more severely disabling than reflected in the currently assigned rating, and in light of the amount of time since his last examination for these disabilities and the possible increase in severity since last examination, reexamination is needed to fully and fairly evaluate the conditions on appeal. See Transcript at pg. 3-5; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505 -06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability. . . the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); VAOPGCPREC 11-95 (1995). The Board further notes that the RO appeared to be in the process of preparing to schedule the Veteran for a VA audiological examination in December 2017 per a VA 21-2507 a request for examination received on January 8, 2018, although the purpose of this examination is unclear, as he has recently filed a petition to reopen a previously denied claim for left ear hearing loss in August 2017. Thus, any further actions taken pursuant to the VA 21-2507a of January 8, 2018 should be associated with the record. The Veteran is noted to have live in different states (California or Colorado) depending on the season per the October 18, 2017 report of information and reported having a traveling lifestyle in an RV in a June 3, 2016 treatment record See 97 pg. CAPRI entered 10/24/16 at pg. 4. Thus, clarification of the appropriate address should be made prior to any scheduling of VA examinations. Accordingly, the case is REMANDED for the following action: 1. All pertinent treatment records not yet obtained, including VA treatment records and any other sources indicated should be obtained and associated with the claims file. 2. Clarify the correct address for the Veteran for the purpose of scheduling and notifying him of upcoming VA examinations. 3. Following completion of the above, schedule the Veteran for a VA examination to address the nature and etiology of his recurrent BCC, claimed as skin cancer. The record must be reviewed by the examiner. All necessary tests should be conducted and all clinical findings reported in detail. The examiner is requested to provide an opinion as to the diagnosis of his claimed recurrent BCC. The examiner should provide an opinion as to whether any current BCC had its clinical onset during active duty or is related to any in-service disease, injury, or event, to include the exposure to herbicides and/or addition to sun exposure while serving in combat. A complete rationale for all opinions expressed must be included in the examination report. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. Schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral hearing loss. The claims file, including this remand must be reviewed by the examiner and such review should be noted in the examination report. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner must fully describe any functional effects associated with the Veteran's bilateral hearing loss and the impact of his hearing disability upon his vocational pursuits. The examiner should also indicate the occupational effects of the hearing loss, if any. A complete rationale for all opinions expressed must be included in the examination report. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 5. After taking any further development deemed appropriate, readjudicate the claims. If a benefit is not granted, provide the appellant a supplemental statement of the case and afford an opportunity to respond before the case is returned 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 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). _________________________________________________ ERIC S. LEBOFF 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) (2017).