Citation Nr: 1815956 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-05 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a skin disability, including actinic keratoses and Bowen's disease/carcinoma insitu. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In July 2015, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO in Huntington, West Virginia. A transcript of the proceeding has been associated with the claims file. This matter was last before the Board in October 2015, at which time it was remanded for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The record in this case indicates that there are conflicting medical opinions as to the nature and etiology of the Veteran's current claimed skin disability; and therefore, the Board finds that a supplemental opinion is necessary to reconcile the conflicting medical opinions. The Veteran served on active duty from December 1967 to September 1970, including service in Vietnam from March 1970 to September 1970. He claims that he has skin disabilities, specifically actinic keratoses and Bowen's disease/carcinoma insitu, due to prolonged sun exposure in Vietnam. In the alternative, he asserts that they are due to herbicide exposure in Vietnam. As noted by the Board in its October 2015 remand, herbicide exposure is presumed based on the Veteran's Vietnam service. See 38 C.F.R. § 3.307(a)(6) (2017). However, actinic keratosis and Bowen's carcinoma and other types of skin cancer are not among those diseases listed in 38 C.F.R. § 3.309(e) for which service connection may be awarded on a presumptive basis due to herbicide exposure. Regardless, the Veteran is not precluded from otherwise proving entitlement to service connection for his conditions based on his herbicide exposure on a direct basis. See Combee v. Brown, 5 Vet. App. 248 (1993). The Veteran submitted an August 2010 statement from Dr. S.M. in support of his claim, in which Dr. S.M. wrote that the Veteran had diagnoses of multiple actinic keratoses and Bowen's disease/carcinoma insitu. Dr. S.M. opined that his conditions were caused by sun damage over the past several years, that it was a cumulative injury, and that these cutaneous changes usually follow prolonged sun exposure or ultraviolet exposure. When this matter was last before the Board in October 2015, the Board found that in light of the August 2010 statement by Dr. S.M., a remand was warranted in order in order to afford the Veteran a VA dermatological examination, as no such examination had been performed in connection with this claim. The Veteran was afforded a VA dermatological examination in January 2016. The examiner opined that the Veteran did not suffer from actinic keratosis, Bowen's disease/carcinoma in situ, or any other skin disability. The examiner further opined that the Veteran's sun exposure during service was transient in nature, rendering it impossible to opine whether the sun exposure during service caused or aggravated any skin disability, as opposed to the Veteran's sun exposure post-service. The aforementioned opinions are conflicting in the fact that the medical records from Dr. S.M's practice reflect that the Veteran has been receiving treatment for a skin disability since March 1981, while the January 2016 examiner found that the Veteran did not suffer from any skin disability. As there are conflicting medical opinions of record, the Veteran should be afforded a new VA examination to determine the nature and etiology of any skin disabilitys. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA dermatological examination by a physician who has not previously examined the Veteran to address the nature and etiology of his skin disabilities, including his diagnosed actinic keratoses and Bowen's disease/carcinoma insitu. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. The examiner should opine as to whether it is "at least as likely as not" (a 50 percent or greater probability) that each skin disability is related to the Veteran's active service, including a) his credible reports of prolonged sun exposure in Vietnam, b) his treatment for possible herpes zoster in 1968, and c) his presumed herbicide exposure. If the Veteran is found to not suffer from any skin disability, the examiner should reconcile these findings with the findings of Dr. S.M., who reports treating the Veteran for a skin disability since March 1981. 2. The AOJ should then review the record, ensure all development sought is completed, and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL A. PAPPAS 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).