Citation Nr: 1808193 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-13 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a skin cancer, to include squamous cell carcinoma, basal cell carcinoma, and actinic keratosis, to include as due to herbicide exposure and as secondary to service-connected tinea pedis with onychomycosis. REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In February 2016, the Board remanded this claim for further development. In January 2017 decision, the Board denied the claim for service connection for a skin cancer, to include squamous cell carcinoma, basal cell carcinoma, and actinic keratosis, to include as due to herbicide exposure and as secondary to service-connected tinea pedis with onychomycosis. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court/CAVC). In granting a July 2017 Joint Motion for Remand (JMR), the Court vacated, in other words set aside, the Board's denial of his claim of entitlement to service connection for a skin cancer, to include squamous cell carcinoma, basal cell carcinoma, and actinic keratosis, to include as due to herbicide exposure and as secondary to service-connected tinea pedis with onychomycosis. The Court remanded claim back to the Board for further proceedings consistent with the July 2017 JMR. As the Court-granted JMR indicates, this claim requires further development before being readjudicated, so the Board in turn is remanding it to the Agency of Original Jurisdiction (AOJ). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In accordance with the Joint Motion, the Board remands the claim for further development. Specifically, the Joint Motion found that the Board erred in relying on the May 2016 VA examination and opinion of record, finding that the examination was inadequate. The Joint Motion noted that the May 2016 VA examiner's opinion did not acknowledge treatment records that indicated that the Veteran had AKs on both of his forearms. The Veteran's service treatment records indicated that he sustained a burn on the right side of his neck, chest, and forearm in March 1968. The record indicated that he had partial thickness burns in scattered areas of the left hand, forearm, upper chest, and neck. The May 2016 VA examiner opined that the Veteran's skin conditions were not related to the burns because the burns were in different areas of his body. The VA examiner stated that there "is no medical evidence to show a burn such as those incurred due to a gasoline fire in one area of the body as a risk factor to develop skin cancer or AK's in another, no nexus." The Court found that his opinion failed to acknowledge treatment records, which indicated that the Veteran had AKs on both of his forearms. The Court found that since the Veteran's in-service burns were on his forearms and the evidence showed that he had AKs on his forearms, the VA examiner's reasoning did not appear to be consistent with the evidence. Therefore, the Court indicated that on remand, the Board must either return the May 2016 examination report or obtain a new opinion where the examiner considers the evidence of March 1968 burns to the forearm and the evidence that Appellant has AKs on his forearm. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding records pertinent to the Veteran's claims. Additionally, send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional private treatment records pertinent to the claim on appeal that are not currently of record. If any of the requested private records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. Allow the Veteran an appropriate amount of time to respond. 2. Then, schedule the Veteran for the appropriate VA examination by a physician to determine the nature and etiology of his skin cancer and actinic keratosis. The examiner must review the claims file, to include all previous VA examination reports and this remand, and should note that review in the report. The examination report should show consideration of the Veteran's documented medical history and assertions. The examiner must consider and address the evidence of March 1968 burns to the forearm and the evidence that the Veteran has AKs, actinic keratosis, on his forearm. After reviewing the record and examining the Veteran, the examiner is asked to address each of the following questions: (a) Is it at least as likely as not (i.e. 50 percent or greater probability) that any of the Veteran's currently diagnosed skin cancer conditions, to include squamous cell carcinoma and actinic keratosis, is caused by or otherwise related to the Veteran's active military service, to include, but not limited to, his second degree burn injuries in March 1968, his first degree burn injuries in August 1969, and his presumed exposure to herbicides (Agent Orange)? (b) Is it at least as likely as not (i.e. 50 percent or greater probability) that any currently diagnosed skin cancer conditions, to include squamous cell carcinoma and actinic keratosis, are proximately due to or caused by the Veteran's service-connected tinea pedis with onychomycosis, to include any medications used to treat the Veteran's tinea pedis with onychomycosis? (c) If not, is it at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed skin cancer conditions, to include squamous cell carcinoma and actinic keratosis, were aggravated (increased in severity) by the Veteran's service-connected tinea pedis with onychomycosis, to include any medications used to treat the Veteran's tinea pedis with onychomycosis? If the examiner determines that the Veteran's skin cancer condition is aggravated by his service-connected tinea pedis with onychomycosis, the examiner should report the baseline level of severity of the skin cancer condition prior to the onset of aggravation to the extent possible. If some of the increase in severity of the skin cancer condition is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 3. Thereafter, the RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that they are responsive to and in compliance with the directives of this remand and, if not, implement corrective procedures. 4. Following the completion of the foregoing, the RO should readjudicate the Veteran's claim. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ K. J. ALIBRANDO 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).