Citation Nr: 1806887 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-07 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a skin disability, to include basal cell carcinoma and rosacea, and as secondary to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and D.S. ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) from a June 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2016, the Veteran testified during a travel board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In light of this testimony and the additional evidence of record, the Veteran's claim has been expanded as noted on the title page. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of this claim. At the outset, the Board notes that the Veteran has reported both VA and private treatment records pertaining to the claimed disability which have not yet been associated with the claims file. See hearing transcript, p. 7 (noting VA skin treatment in 1998 and 2009); claim dated December 2011 (noting private treatment with Dr. Baskins). As such, all reasonable efforts must now be made to obtain them. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(c) (2017). Further, the Veteran's skin disability has not yet been assessed by a VA examiner. However, the claims file contains competent evidence of several current skin disabilities and the Veteran's in-service history of skin problems. See, e.g., private treatment records dated September 1998 (diagnosing squamous cell carcinoma; rosacea; and dermatosis) and November 2011 (diagnosing basal cell carcinoma); service treatment records generally (noting repeated treatment for skin conditions). Thus, the Board finds that a VA examination is now warranted such that the etiology of the Veteran's current skin disabilities may be evaluated. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Said examination also provides the opportunity for VA to solicit an opinion regarding the full scope of the Veteran's current disabilities, and an opinion as to whether his previously-diagnosed basal cell carcinoma and squamous cell carcinoma qualify as soft-tissue sarcomas such that presumptive service connection is for application in this case. See Certificate of Release or Discharge from Active Duty (reflecting Vietnam service); 38 C.F.R. § 3.309 (establishing presumptive service connection for Vietnam veterans with diagnosed soft-tissue sarcomas). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record all VA treatment records for the Veteran prior to December 2011. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. If possible, the Veteran himself should attempt to obtain all the records cited above. 2. Contact the Veteran and request that he identify all private providers of medical treatment for his skin disability since service, and request the Veteran provide authorization for release of all identified private medical records to VA. All actions to obtain the requested records should be fully documented in the record. The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. Specifically, the RO must attempt to obtain records from Dr. Baskins of Plant City. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. 3. Provide the Veteran with a VA skin examination to assess the nature and etiology of the claimed disability. The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred. All pertinent symptomatology and findings must be reported in detail. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner should elicit a complete history from the Veteran. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should indicate the following: a. Identify all skin disabilities that the Veteran has demonstrated during the pendency of this appeal (to include squamous cell carcinoma, rosacea, dermatosis, and basal cell carcinoma); b. For each of the identified disabilities, indicate whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to military service. A complete review of the Veteran's service treatment records must be undertaken and all in-service treatment for skin problems must be accounted for. c. Provide an opinion as to whether either of the Veteran's previously-diagnosed squamous cell carcinoma and basal cell carcinoma qualifies as "soft-tissue carcinoma," to include a detailed rationale therefor. In providing the above opinions, the examiner must explicitly account for the Veteran's competent testimony regarding his symptoms, including the onset and nature thereof. In formulating the opinion, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for any opinion or conclusion expressed, with citation to medical treatise, studies, etc., if appropriate. If any opinion cannot be provided without resorting to mere speculation, provide a complete explanation stating why, to include explaining whether the inability to provide a more definitive opinion is the result of a need for additional information or that you have exhausted the limits of current medical knowledge in providing answers to the questions. 4. Readjudicate the claim on appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative and provide an appropriate period for response. The Veteran has the right to submit additional evidence and argument on the matter 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). JOHN J. CROWLEY 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).