Citation Nr: 21000654 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 12-06 858 DATE: January 5, 2021 REMANDED Entitlement to service connection for skin cancer, to include malignant skin neoplasms of the left side of the neck, left shoulder, right arm and basal cell carcinoma, to include as due to exposure to Agent Orange and/or sunlight, is remanded. Entitlement to service connection for scars as residuals of treatment for skin cancer is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1967 to August 1967 and from May 1968 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2010 and January 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge during an April 2015 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This matter was previously before the Board in August 2015 wherein the Board remanded for additional development to include obtaining a VA examination and medical opinion. The matter returned to the Board in December 2018 and was remanded after the Board found that the VA examination was inadequate. Most recently in September 2020, the Board remanded the matter as the addendum opinion was found to be inadequate. The matter has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). As an initial matter, the Board finds that remand is necessary as VA treatment records from 1986 to 2001 were not obtained by the RO as instructed in the August 2015 Board decision. After review of the Veteran’s claim file, the earliest records from any VA Medical Center is from 2002. It does not appear that the RO made any attempts to obtain VA treatment records beginning from 1986. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. 1. Service connection for skin cancer, to include malignant skin neoplasms of the left side of the neck, left shoulder, right arm and basal cell carcinoma, to include as due to exposure to Agent Orange (herbicide agents) and/or sunlight The Veteran contends that his skin cancers are due to exposure to Agent Orange or other herbicides, or in the alternative, due to exposure to sunlight during his deployment to the Republic of Vietnam. The Veteran was afforded a VA examination in July 2017. In December 2018, the Board found that the VA medical opinion was inadequate as the examiner’s rationale was based on belief and not fact. The examiner failed to obtain an adequate history of sun exposure in service and failed to cite to medical literature or provide any evidence in support of his statements. Additionally, the examiner did not specifically address if there is a relationship between sun exposure and skin cancer as he indicated that the Veteran’s sun exposure outside of service was more likely the cause of his cancer. An addendum opinion was obtained by the same VA examiner in September 2019. However, the examiner once again failed to address the deficiencies in his previous opinion and essentially provided the same opinion as he did in July 2017. In September 2020, the RO obtained another addendum opinion as instructed by the September 2020 Board decision. The same examiner who provided the July 2017 and September 2019 opinions once again provided basically the same opinions as the previous ones. The examiner found that it is less likely as not that there is a direct relationship between the Veteran’s skin cancer and the in-service herbicide exposure. He provided rationale that the Veteran had extensive sun exposure for two years in service, however, he had much more cumulative sun exposure in the other 70 some years outside of service with much recreational sun exposure as a child, worker, and time at the beach. He referenced a medical note from 1990 that stated, “the patient does a fair amount of outside work. He also works in graphic arts, and as such he does get a fair amount of sun exposure.” The examiner concluded that it is more likely than not he had more sun exposure outside of service than in service and thus more likely related to out of service exposure. The examiner documented that he reviewed Up to Date and that epidemiologic studies indicate that cumulative sun exposure (principally ultraviolet B (UVB) radiation) is the most important environmental cause of squamous cell carcinoma (cSCC). In contract, intense, intermittent sun exposure (e.g., sunburn, childhood exposure) is the most important risk fact for basal cell carcinoma and melanoma. He also noted that the article stated that high occupational sun exposure is a major risk factor for cSCC. Here, the examiner provides an opinion that the Veteran’s skin cancer is less likely than not related to the in-service herbicide exposure but appears to provide rationale for sun exposure rather than herbicide exposure. The RO asked the VA examiner to provide clarification from his September 2020 addendum opinion as his comments did not adequately respond to the medical opinion request. He was asked to provide an opinion as to whether the skin cancer is related to herbicide exposure with specific reasons in support of the opinion, to include, as relevant, why any statistical or medical studies are found to be persuasive or unpersuasive, whether there are other risk factors that might be the cause of the Veteran’s skin cancer, and whether the condition has manifested in an unusual manner. The examiner provided a follow-up opinion in September 2020 and he stated that he believes skin cancer is unrelated to herbicide exposure and that it is impossible to prove a negative, but he is unaware of any studies that show an association. He also stated that he saw no other risk factors that might be the cause of the Veteran’s skin cancer and he does not believe it has manifested in an unusual manner. As far as sun exposure, he noted that he is unaware of statistical or medical studies that are found to be persuasive or unpersuasive, whether there are other risk factors that might be the cause of the Veteran’s skin cancer, and whether the condition has manifested itself in an unusual manner. He indicated his opinion was based on “Up to Date” summary, which is a well-known peer reviewed publication. Again, the VA examiner provided an opinion that is inadequate. While he did cite to Up to Date to support his rationale as to a direct link between skin cancer and sunlight exposure, the examiner found that there were no studies that showed an association between skin cancer and herbicide exposure. He concluded that because there are no studies regarding such a link, the skin cancer is unrelated to herbicide exposure and did not provide any further explanation. Furthermore, the Board finds that the examiner did not obtain an adequate history of sun exposure. The VA examiner mainly focused on the Veteran’s sun exposure outside of service while providing a negative rationale and did not adequately consider the Veteran’s statements that he did not spend a lot of time out in the sun before he went to Vietnam and that he was exposed to sun basically every day in his under clothes while stationed in Vietnam. See April 2015 Board testimony at pgs. 19-21. Hence, some of the VA examiner’s opinion addressing the Veteran’s sun exposure appears to contradict the Veteran’s statements at the April 2015 Board testimony. The September 2020 addendum opinions are inadequate as it is based on an accurate factual premise. See Reonal v. Brown, 5 Vet. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). In this regard, the Veteran reported that he started using sun block as soon as it came out and that he remembers his mother putting zinc on him. See April 2015 Board testimony at pg. 23. After service, the Veteran explained that he went to college, worked for the Times newspaper, and then started his own graphic arts business. He testified that he only participated in outdoor recreational activities in the form of fishing, only once a month and made sure he was covered up when he did so. See April 2015 Board testimony at pg. 30-31. The Veteran also testified at the Board hearing that he first started experiencing skin issues in the early 1970s. See April 2015 Board testimony at pg. 33. In support of his claim, the Veteran provided nexus opinions from two physicians. In November 2011, Dr. C.N. found that the cause of his skin cancers is likely from his fifty plus year history of living in Florida, in addition to the ultraviolet damage that he received while serving in the U.S. military in Vietnam. See December 2011 Correspondence. Dr. D.H. opined that sun damage at a younger age is believed to be most important in the causation of skin cancer and therefore, there is a 50 percent chance (at least as likely as not) that the Veteran’s history of many skin carcinomas are related to the sun exposure he encountered while performing tasks in Vietnam. See January 2012 Notification Letter. However, it is unclear if these statements from Dr. C.N. and Dr. D.H. were considered in the VA examiner’s opinions. He also submitted several statements from friends and family attesting to his skin cancer. Particularly, the Veteran’s sister stated that the Veteran never had skin issues prior to his deployment to Vietnam and that there is no family history of melanoma. See May 2015 Buddy/Lay Statement. Accordingly, an addendum medical opinion is necessary to address the deficiencies in the September 2020 VA addendum examination report. 2. Service connection for scars as residuals of treatment for skin cancer The Board finds that the claim for entitlement to service connection for scars as residuals of treatment for skin cancer is inextricably intertwined with the claim remanded herein. Hence, this final issue is not yet ripe for appellate review and must be deferred pending re-adjudication of the remanded claim. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain VA treatment records from December 2020 to present. Additionally, obtain VA treatment records for the period from 1986 to July 2002. All reasonable attempts should be made to obtain these records and must be documented in the record. 2. After completion of the above, arrange for a VA addendum medical opinion by a VA examiner other than the previous examiner to address the claim for skin cancer and scars. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: The examiner must opine as to whether the Veteran’s skin cancer at least as likely as not (50 percent or greater probability) a) had its onset in service; or b) was otherwise incurred in service, to specifically include the conceded herbicide exposure and/or exposure to ultraviolet sun damage during his deployment to the Republic of Vietnam? c) Relevant to any residual scarring, if the Veteran’s skin cancer is deemed to be as due to military service, the examiner should report as to whether any scarring is a residual of the removal of skin cancer. Therefore, the examiner should perform a skin examination and provide comment as to the description of each scar. The examiner is requested that prior to rendering an opinion, he or she must obtain a complete history of the Veteran’s sun exposure (prior, during, and after service), whether it be in person or by a thorough review of the Veteran’s claims folder, including his sworn testimony at the April 2015 Board hearing. In responding to the above, the examiner must consider the Veteran’s lay statements regarding his skin issues manifesting from the early 1970s. The opinion must also address the nexus statements from Dr. C.N. and Dr. D.H., as well as the buddy statements submitted on the Veteran’s behalf addressing his skin issues. In support of his or her opinion, the examiner must provide specific reasons, to include, as relevant, why any statistical or medical studies are found to be persuasive or unpersuasive, whether there are other risk factors that might be the cause of the Veteran’s skin cancer, and whether the condition has manifested in an unusual manner. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.